A. Purpose

To properly control movement across its borders, a government must be able to scrutinize and assess a person’s identity as part of determining eligibility to enter. If a foreign national willfully provides incorrect information about identity and intentions for entering the country, the person has deprived the government of its right to examine the request for admission. [1] See Matter of B- and P-, 2 I&N Dec. 638, 645-46 (A.G. 1947).

In recognition of these principles, Congress provided a specific ground of inadmissibility to address the use of fraud or willful misrepresentation when obtaining a benefit under the Immigration and Nationality Act (INA).

There are exceptions and waivers to inadmissibility due to fraud or willful misrepresentation available to a person under certain circumstances depending on the particular immigration benefit the person is seeking. [2] For more on the waiver of fraud or willful misrepresentation under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

B. Background

The 1924 Immigration Act [3] See Sections 22(b) and 22(c) of the Immigration Act of 1924, Pub. L. 68-139 (May 26, 1924). made obtaining a visa under a false name or submitting false evidence in support of a visa application a federal crime. The Board of Immigration Appeals (BIA) and the courts used this principle to find that a visa obtained by fraud was no visa at all, making the person’s admission with a fraudulent visa unlawful. [4] See Matter of B- and P-, 2 I&N Dec. 638, 640-41 (A.G. 1947), citing McCandless v. Murphy, 47 F.2d 1072 (3rd Cir. 1931). See United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (7th Cir. 1938). See United States ex rel. Fink v. Reimer, 96 F.2d 217 (2nd Cir. 1938).

Congress codified the BIA’s and the courts’ approach in the Immigration and Nationality Act of 1952. With former INA 212(a)(19), it created a new bar to admission for any applicant who used fraud or willful misrepresentation to gain entry into the United States or obtain a visa or other documentation. [5] Former INA 212(a)(19) made inadmissible any applicant who “seeks to procure, or has sought to procure or has procured a visa or other documentation, or seeks to enter the United States by fraud, or by willfully misrepresenting a material fact.” See the Immigration and Nationality Act of 1952, Pub. L. 82-414 (June 27, 1952).

In 1986, Congress amended the bar so that a person could be found inadmissible for using fraud or willful misrepresentation when seeking any benefit under the INA, not just entry, visas, or other documents. [6] Congress expanded former INA 212(a)(19) to make one inadmissible for using fraud or willful misrepresentation in relation to “a visa, other documentation, or entry into the United States or other benefit provided under this Act.” See Section 6(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. 99-639, 100 Stat. 3537, 3543 (November 10, 1986). Congress re-designated former INA 212(a)(19) as INA 212(a)(6)(C) in 1990 but did not alter the bar to admission itself. [7] See Section 601(a) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 5067 (November 29, 1990). Substantive changes to the inadmissibility ground did not come until 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [8] See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996).

With the passage of IIRIRA, Congress created two separate inadmissibility grounds that remain unchanged to this day: [9] See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

Fraud or willful misrepresentation made in connection with obtaining an immigration benefit; [10] See INA 212(a)(6)(C)(i). and

False claim to U.S. citizenship made on or after September 30, 1996. [11] See INA 212(a)(6)(C)(ii).

These two grounds differ significantly. This Part J only addresses the inadmissibility determination for fraud or willful misrepresentation made in connection with obtaining an immigration benefit. This includes, however, false claims to U.S. citizenship made prior to September 30, 1996.

Foreign nationals who made a false claim to U.S. citizenship prior to September 30, 1996, cannot be found inadmissible under the false claim to U.S. citizenship ground of inadmissibility. [12] See INA 212(a)(6)(C)(ii). IIRIRA made this ground applicable only to false claims made on or after September 30, 1996. [13] See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208 (September 30, 1996).

Therefore, for false claims to U.S. citizenship made before September 30, 1996, the officer must analyze the person’s inadmissibility according to the general fraud and willful misrepresentation ground of inadmissibility, as outlined in this Part J. [14] See INA 212(a)(6)(C)(i).

C. Scope

This guidance addresses inadmissibility for fraud and willful misrepresentation [15] See INA 212(a)(6)(C)(i). Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996 is a separate inadmissibility ground. See INA 212(a)(6)(C)(ii). in relation to obtaining a benefit under the INA, including inadmissibility for falsely claiming U.S. citizenship before September 30, 1996.

D. Legal Authorities

INA 212(a)(6)(C)(i) – Illegal entrants and immigration violators - misrepresentation

Footnotes


1. [^]

See Matter of B- and P-, 2 I&N Dec. 638, 645-46 (A.G. 1947).

2. [^]

For more on the waiver of fraud or willful misrepresentation under INA 212(i), see Volume 9, Waivers, Part G, Waivers for Fraud and Willful Misrepresentation [9 USCIS-PM G].

3. [^]

See Sections 22(b) and 22(c) of the Immigration Act of 1924, Pub. L. 68-139 (May 26, 1924).

4. [^]

See Matter of B- and P-, 2 I&N Dec. 638, 640-41 (A.G. 1947), citing McCandless v. Murphy, 47 F.2d 1072 (3rd Cir. 1931). See United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (7th Cir. 1938). See United States ex rel. Fink v. Reimer, 96 F.2d 217 (2nd Cir. 1938).

5. [^]

Former INA 212(a)(19) made inadmissible any applicant who “seeks to procure, or has sought to procure or has procured a visa or other documentation, or seeks to enter the United States by fraud, or by willfully misrepresenting a material fact.” See the Immigration and Nationality Act of 1952, Pub. L. 82-414 (June 27, 1952).

6. [^]

Congress expanded former INA 212(a)(19) to make one inadmissible for using fraud or willful misrepresentation in relation to “a visa, other documentation, or entry into the United States or other benefit provided under this Act.” See Section 6(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. 99-639, 100 Stat. 3537, 3543 (November 10, 1986).

7. [^]

See Section 601(a) of the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 5067 (November 29, 1990).

8. [^]

See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Division C of Pub. L. 104-208 (September 30, 1996).

9. [^]

See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208, 110 Stat. 3009, 3009-637 (September 30, 1996).

13. [^]

See Section 344(a) of IIRIRA, Division C of Pub. L. 104-208 (September 30, 1996).

15. [^]

See INA 212(a)(6)(C)(i). Inadmissibility for falsely claiming U.S. citizenship on or after September 30, 1996 is a separate inadmissibility ground. See INA 212(a)(6)(C)(ii).