Overview of Fraud and Willful Misrepresentation:

An applicant may be found inadmissible if he or she obtains a benefit under the Immigration and Nationality Act (INA) either through:

  • Fraud; or
  • Willful misrepresentation.

Although fraud and willful misrepresentation are distinct actions for inadmissibility purposes, they share common elements. Hence, we need to be mindful of what is considered “Fraud” and “Willful Misrepresentation” as it could often happen due to not paying attention to the information we willfully provide.

Please note:

  • All of the elements necessary for a finding of inadmissibility based on willful misrepresentation are also needed for a finding of inadmissibility based on fraud
  • However, A fraud finding requires two additional elements
  • This is why a person who is inadmissible for fraud is always also inadmissible for willful misrepresentation
  • The opposite is not necessarily true
  • A person inadmissible for willful misrepresentation is not necessarily inadmissible for fraud
  • Misrepresentation of a material fact may lead to other adverse immigration consequences

For example, if the beneficiary commits marriage fraud, it may have adverse immigration consequences for both the petitioner and the beneficiary.

Criteria for Willful Misrepresentation:

It requires a finding that a person willfully misrepresented a Material Fact

For the person to be inadmissible, the officer must find all of the following elements:

  • The person procured or sought to procure, a benefit under U.S. immigration laws
  • The person made a false representation
  • The false representation was willfully made
  • The false representation was material
  • The false representation was made to a U.S. government official, generally immigration or consular office

Is there a Difference in Immigration consequences, if a person was not able to procure an Immigration Benefit?

  • If the person succeeded in obtaining the benefit under the INA, he or she would be inadmissible for having procured the benefit by willful misrepresentation
  •  If the attempt was not successful, the person would still be inadmissible for having “sought to procure” the immigration benefit by willful misrepresentation
  •  However, in each case, the evidence of intent to deceive is not required

Criteria For Fraud:

It requires a finding that a person knowingly made a false representation of a Material Fact with the intent to deceive the other party.

For a person to be inadmissible for having procured entry, a visa, other documentation, or any other benefit under the INA by fraud, the officer must find all of the following elements:

  • The person procured or sought to procure, a benefit under U.S. immigration laws
  • The person made a false representation
  • The false representation was willfully made
  • The false representation was material
  • The false representation was made to a U.S. government official, generally immigration or consular officer
  • The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer)
  • The U.S. government official believed and acted upon the false representation by granting the benefit

If all of the above elements are present, then the person is inadmissible for having procured an immigration benefit by fraud.

Please Note:

  • Since the elements required for fraud also include the elements for willful misrepresentation, the person is also inadmissible for willful misrepresentation
  • Similar to willful misrepresentation If the person was unsuccessful in obtaining the benefit, he or she may still be inadmissible for having “sought to procure” the immigration benefit by fraud
  • In this case, the fraud element requiring the U.S. government official to believe and act upon the false representation is not applicable
  • However, intent to deceive is still a required element

An Overview of Admissibility Determination

if the evidence indicates that the person may be inadmissible due to fraud or willful misrepresentation, the officer should follow the steps (given below)in the table below to determine inadmissibility:

Steps for Admissibility Determination:

  1. Determine whether the person procured, or sought to procure, a benefit under U.S. immigration laws
  2. Determine whether the person made a false representation
  3. Determine whether the false representation was willfully made
  4. Determine whether the false representation was material
  5. Determine whether the false representation was made to a U.S. government official
  6. Determine whether, when making the false representation, the person intended to deceive a U.S. government official authorized to act upon request (generally immigration or consular officer)
  7. Determine whether the U.S. government official believed and acted upon the false representation
  8. Determine whether a waiver of inadmissibility is available

The officer should examine all facts and circumstances when evaluating inadmissibility for fraud or willful misrepresentation, as the person will be barred from admission for life. The barred person can be eligible for a waiver, under extremely limited circumstances.

What Type of  Procured “Benefit” Will be Counted for Inadmissibility (due to fraud or willful misrepresentation)?

There are predominantly three types of benefits:

General

In order to be found inadmissible for fraud or willful misrepresentation, a person must seek to procure, have sought to procure, or have procured one of the following:

  • An immigrant or nonimmigrant visa
  • Other documentation
  • Admission into the United States
  • Other benefit provided under the INA

Other Documentation

“Other documentation” refers to documents required when a person applies for admission to the United States. This includes, but is not limited to:

  • Re-entry permits;
  • Refugee travel documents;
  • Border crossing cards; and
  • U.S. passports.

Other Benefits Provided under the INA

Any “other benefit” refers to an immigration benefit or entitlement provided for by the INA. This includes, but is not limited to:

  • Requests for extension of nonimmigrant stay
  • Change of nonimmigrant status
  • Permission to re-enter the United States
  • Waiver of the 2-year foreign residency requirement
  • Employment authorization
  • Parole
  • Voluntary departure
  • Adjustment of status
  • Requests for a stay of deportation

What is the Definition of “Willfulness?”

  • The term “willfully” should be interpreted as “knowingly” as distinguished from accidentally, inadvertently, or in a good faith belief that the factual claims are true
  • To find the element of willfulness, the officer must determine that the person had knowledge of the falsity of the misrepresentation, and therefore knowingly, intentionally, and deliberately presented false material facts
  • The officer should consider the circumstances that existed at the time the benefit was issued
  • USCIS petitions and applications are signed “under penalty of perjury.” The person may also be interviewed under oath
  • By signing or by making statements under oath, the person, therefore, asserts his or her claims are truthful
  • If the evidence in the record subsequently shows that the claims are factually unsupported, that may indicate the applicant willfully misrepresented his or her claim(s)

Special Note on Silence or Failure to Volunteer Information:

  • A person’s silence or failure to volunteer information does not, in and of itself, constitute fraud or willful misrepresentation because silence itself does not establish a conscious concealment
  • Silence or omission can, however, lead to a finding of fraud or willful misrepresentation if it is clear from the evidence that the person consciously concealed information
  • If the evidence shows that the person was reasonably aware of the nature of the information sought and knowingly, intentionally, and deliberately concealed information from the officer
  •  Then the officer should find that the applicant consciously concealed and willfully misrepresented a material fact.

The distinction between fraud and willful misrepresentation is not that important as either fraud or a willful misrepresentation alone is sufficient to establish inadmissibility. Hence it is paramount to be truthful about the immigration documents and statements.

Please consult a reputed lawyer before you apply for a visa, permanent residency, or even thinking about naturalization. You can fill out this contact form and schedule your consultation with one of our attorneys, or  Schedule a Consultation 469-994-9407 if you have questions or comments about certain types of documents.