A. Purpose

U.S. citizenship confers important rights and responsibilities, including the right to vote and to hold public office. U.S. citizens also have an unqualified right to live in the United States. In recognition of these principles, Congress provided a specific ground of inadmissibility to address when a foreign national falsely claims to be a U.S. citizen for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law. Indeed, the immigration consequences for falsely claiming U.S. citizenship are severe. [1] Falsely claiming U.S. citizenship is also a criminal offense under 18 U.S.C. 911. This Part K does not address the criminal consequences of falsely claiming U.S. citizenship but addresses when a criminal conviction is evidence for purposes of the inadmissibility determination. The foreign national is permanently barred from admission. [2] See INA 212(d)(3). If the foreign national needs a nonimmigrant visa, then the Department of State (DOS) must concur in the waiver.

There are exceptions and waivers to this ground of inadmissibility. The Department of Homeland Security has the authority to waive inadmissibility for purposes of a nonimmigrant admission. A waiver is not available, however, to most foreign nationals seeking lawful permanent resident (LPR) status.

B. Background

Congress added the ground of inadmissibility for falsely claiming U.S. citizenship with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [3] See Pub. L. 104-208 (September 30, 1996). Prior to the passage of IIRIRA, a foreign national who falsely claimed U.S. citizenship for purposes of immigration benefits was inadmissible because of fraud and willful misrepresentation. [4] See INA 212(a)(6)(C). For more information on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J]. Concerned about non-citizens’ increased use of fraud to access various federal benefits, [5] See H.R. Rep. 104-861, p. 50 (Sept. 28, 1996). See 142 Cong. Rec. S11503 (daily ed. September 27, 1996) (statement of Sen. Hatch). See H.R. Rep. 104-828, p. 199 (Sept. 24, 1996) (Conf. Rep.) (Joint Explanatory Statement). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). Congress divided the provision into two separate inadmissibility grounds including: [6] 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; [7] See INA 212(a)(6)(C)(i). and

False claim to U.S. citizenship made on or after September 30, 1996 in connection with obtaining any benefit or for any purpose under federal or state law, including immigration law. [8] See INA 212(a)(6)(C)(ii). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

These two grounds differ significantly. This part only addresses the inadmissibility determination for false claims to U.S. citizenship made on or after September 30, 1996, the date that the new inadmissibility ground for falsely claiming U.S. citizenship became effective.

The officer cannot make a finding of inadmissibility under the false claim to U.S. citizenship ground of inadmissibility for foreign nationals who made a false claim to U.S. citizenship prior to September 30, 1996. [9] See INA 212(a)(6)(C)(ii). See Section 344(c) of IIRIRA, Pub. L. 104-208, 110 Stat. 3009-546, 3009-637 (September 30, 1996). In those cases, the officer must analyze the foreign national’s inadmissibility according to the fraud and willful misrepresentation ground of inadmissibility. [10] For more information, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

This distinction is important, because foreign nationals who made a false claim to U.S. citizenship before September 30, 1996, may apply for a waiver of the ground of inadmissibility for fraud and misrepresentation. [11] See INA 212(a)(6)(C)(i) and INA 212(i). Foreign nationals who made a false claim to U.S. citizenship on or after September 30, 1996, generally are not eligible for waivers if they seek permanent resident status. [12] Depending on the immigration benefit the applicant is seeking, the applicant may have a waiver available; however, foreign nationals seeking to immigrate as immediate relatives, under a preference category, or based on the diversity visa lottery do not have a waiver available.

The chart below outlines the distinctions between the inadmissibility grounds of fraud or willful misrepresentation [13] See INA 212(a)(6)(C)(i). and falsely claiming U.S. citizenship. [14] See INA 212(a)(6)(C)(ii).

Comparing Fraud or Willful Misrepresentation

and False Claim to U.S. Citizenship

Inadmissibility

Ground

Offense

Description

Made To

Waiver

Fraud or Willful Misrepresentation

INA 212(a)(6)(C)(i)

Fraud or willful misrepresentation anytime or false claim to U.S. citizenship made before September 30, 1996

Misrepresentation material for any purpose or benefit under INA

(immigration benefit)

Government official exercising authority under the immigration and nationality laws [15] For example, a Customs and Border Protection, Immigration and Customs Enforcement, or USCIS officer, a consular officer, or an immigration judge.

Waiver available for most applicants

False Claim to U.S. Citizenship

INA 212(a)(6)(C)(ii)

False claim to U.S. citizenship made on or after September 30, 1996

Misrepresentation of U.S. citizenship for any purpose or benefit under INA or any other federal or state law

Any government or non-government official [16] For example, a private employer, lender, school, or other entity.

Waiver not available for most applicants

C. Scope

This guidance addresses inadmissibility for falsely claiming U.S. citizenship [17] See INA 212(a)(6)(C)(ii). Inadmissibility for fraud or willful misrepresentation or falsely claiming U.S. citizenship before September 30, 1996, is a separate inadmissibility ground. See INA 212(a)(6)(C)(i). for any purpose or benefit under the INA or any other federal or state law, made on or after September 30, 1996.

D. Legal Authorities

INA 212(a)(6)(C)(ii) – Illegal entrants and immigration violators – falsely claiming citizenship

Footnotes


1. [^]

Falsely claiming U.S. citizenship is also a criminal offense under 18 U.S.C. 911. This Part K does not address the criminal consequences of falsely claiming U.S. citizenship but addresses when a criminal conviction is evidence for purposes of the inadmissibility determination.

2. [^]

See INA 212(d)(3). If the foreign national needs a nonimmigrant visa, then the Department of State (DOS) must concur in the waiver.

3. [^]

See Pub. L. 104-208 (September 30, 1996).

4. [^]

See INA 212(a)(6)(C). For more information on fraud and willful misrepresentation, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

5. [^]

See H.R. Rep. 104-861, p. 50 (Sept. 28, 1996). See 142 Cong. Rec. S11503 (daily ed. September 27, 1996) (statement of Sen. Hatch). See H.R. Rep. 104-828, p. 199 (Sept. 24, 1996) (Conf. Rep.) (Joint Explanatory Statement). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

6. [^]

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

8. [^]

See INA 212(a)(6)(C)(ii). See Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

9. [^]

See INA 212(a)(6)(C)(ii). See Section 344(c) of IIRIRA, Pub. L. 104-208, 110 Stat. 3009-546, 3009-637 (September 30, 1996).

10. [^]

For more information, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

12. [^]

Depending on the immigration benefit the applicant is seeking, the applicant may have a waiver available; however, foreign nationals seeking to immigrate as immediate relatives, under a preference category, or based on the diversity visa lottery do not have a waiver available.

15. [^]

For example, a Customs and Border Protection, Immigration and Customs Enforcement, or USCIS officer, a consular officer, or an immigration judge.

16. [^]

For example, a private employer, lender, school, or other entity.

17. [^]

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