9 FAM 302.9
(U) Ineligibility based on Illegal Entry,
MISREPRESENTATION and Other Immigration Violations - INA 212(a)(6)
(CT:VISA-894; 07-16-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 302.9-1 (U) Statutory and
Regulatory AuthoritY
9 FAM 302.9-1(A) (U)
Immigration and Nationality Act
(CT:VISA-272; 12-20-2016)
(U) INA 101(a)(49) (8 U.S.C.
1101(a)(49)); INA 212(a)(6)(A) (8 U.S.C. 1182(a)(6)(A)); INA 212(a)(6)(B) (8
U.S.C. 1182(a)(6)(B)); INA 212(a)(6)(C) (8 U.S.C. 1182(a)(6)(C)); INA
212(a)(6)(D) (8 U.S.C. 1182(a)(6)(D)); INA 212(a)(6)(E) (8 U.S.C.
1182(a)(6)(E)); INA 212(a)(6)(F) (8 U.S.C. 1182(a)(6)(F)); INA 212(a)(6)(G) (8
U.S.C. 1182(a)(6)(G)); INA 212(d)(3) (8 U.S.C. 1182(d)(3)); INA 212(d)(11) (8
U.S.C. 1182(d)(11)); INA 212(d)(12) (8 U.S.C. 1182(d)(12)); INA 212(i) (8
U.S.C. 1182(i)); INA 214(m) (8 U.S.C. 1184(m)); INA 274A (8 U.S.C. 1324a); INA
274C (8 U.S.C. 1324c).
9 FAM 302.9-1(B) (U) Code of
Federal Regulations
(CT:VISA-272; 12-20-2016)
(U) 22 CFR 40.61; 22 CFR 40.62; 22
CFR 40.63; 22 CFR 40.64; 22 CFR 40.65; 22 CFR 40.66; 22 CFR 40.67.
9 FAM 302.9-2 (U) Present Without
Admission or Parole - INA 212(a)(6)(A)
9 FAM 302.9-2(A) (U) Grounds
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(6)(A) provides that
an alien who is present in the United States without being admitted or paroled,
or who arrives in the United States at an undesignated time or place is
inadmissible.
9 FAM 302.9-2(B) (U)
Application
(CT:VISA-543; 03-27-2018)
(U) INA 212(a)(6)(A)(i) does not
apply at the time of visa application because it applies only to aliens who are
either present or arriving in the United States.
9 FAM 302.9-3 (U) Failure to
Attend Removal proceeding - INA 212(a)(6)(B)
9 FAM 302.9-3(A) (U) Grounds
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(6)(B) provides that
an alien who without reasonable cause failed to attend, or remain in attendance
at, a hearing to determine inadmissibility or deportability is ineligible for a
visa for five years following the aliens subsequent departure or removal from
the United States.
9 FAM 302.9-3(B) (U)
Application
9 FAM 302.9-3(B)(1) (U)
Failure to Attend Removal Proceedings
(CT:VISA-861; 06-17-2019)
a. (U) An alien placed in
removal proceedings on or after April 1, 1997, who without reasonable cause,
fails or refuses to attend or remain in attendance at proceedings to determine
the alien's inadmissibility or deportability is ineligible under INA
212(a)(6)(B) for five years following the aliens departure or removal from the
United States. Reasonable cause is defined as something that is not within
the reasonable control of the alien.
b. (U) Federal courts have
found that the following were not reasonable causes for failing to attend
removal proceedings:
(1) (U) Filing a motion for
change of venue or for a continuance (prior to the court granting the motion);
(2) (U) Failure to inform the
government of a change of address;
(3) (U) Misplacing a hearing
notice;
(4) (U) Claiming ineffective
assistance of counsel without complying with the requirements of such a claim
(e.g. filing a motion to reopen the proceedings claiming ineffective
assistance, etc.); and
(5) (U) Heavy traffic.
c. (U) Serious illness in some
cases may be considered a reasonable cause for failing to attend or remain in
attendance at removal proceedings.
9 FAM 302.9-3(C) (U) Advisory
Opinions
(CT:VISA-894; 07-16-2019)
(U) An AO is not required for a
potential INA 212(a)(6)(B) ineligibility; however, if you have a question about
the interpretation or application of law or regulation, such as what
constitutes "reasonable cause," you may request an AO from CA/VO/L/A.
As with other grounds that do not require a formal AO, the AO may be informal.
See 9 FAM 304.3-1.
9 FAM 302.9-3(D) (U) Waivers
9 FAM 302.9-3(D)(1) (U)
Waivers for Immigrants
(CT:VISA-74; 03-03-2016)
(U) The INA does not provide a
waiver of INA 212(a)(6)(B) for immigrant visa applicants.
9 FAM 302.9-3(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-757; 04-01-2019)
(U) You may, in your discretion,
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an alien who is
ineligible under INA 212(a)(6)(B) provided the alien meets the criteria
specified in 9 FAM
305.4-3(B) and you have considered the
factors in 9
FAM 305.4-3(C).
9 FAM 302.9-3(E) Unavailable
9 FAM 302.9-3(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-3(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-4 (U)
Misrepresentation - INA 212(a)(6)(c)(i)
9 FAM 302.9-4(A) (U) Grounds
(CT:VISA-543; 03-27-2018)
(U) INA 212(a)(6)(C)(i) provides
that "any alien who by fraud or willfully misrepresenting a material fact
seeks to procure (or sought to procure or has procured) a visa, other documentation,
or admission into the United States or some other benefit provided under"
the INA is ineligible.
9 FAM 302.9-4(B) (U)
Application
9 FAM 302.9-4(B)(1) (U)
Criteria for Finding
(CT:VISA-757; 04-01-2019)
a. (U) In order to find an
alien ineligible under INA 212(a)(6)(C)(i), the consular officer must
determine that the following four elements have been satisfied:
(1) (U) There has been an
affirmative act of misrepresentation made by the applicant (see 9 FAM
302.9-4(B)(3));
(2) (U) The misrepresentation
was willfully made (see 9 FAM
302.9-4(B)(4));
(3) (U) The fact
misrepresented is material (see 9 FAM
302.9-4(B)(5); and
(4) (U) The alien by using
fraud or misrepresentation (see 9 FAM
302.9-4(B)(2)) seeks to procure, has sought to procure, or has procured a
visa, other documentation, admission into the United States (see 9 FAM
302.9-4(B)(7) paragraph a), or other benefit provided under the INA (see 9 FAM
302.9-4(B)(7) paragraph b).
b. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4 Unavailable
(5) Unavailable
9 FAM 302.9-4(B)(2) (U)
Different Standards for Finding of Fraud or Willfully Misrepresenting a
Material Fact
(CT:VISA-543; 03-27-2018)
a. (U) The text of INA 212(a)(6)(C)(i) refers to both "fraud"
and "willfully misrepresenting a material fact," which are two
distinct things. The Board of Immigration Appeals determined that
"fraud" typically means that the alien made a false representation of
a material fact with knowledge of its falsity and with the intent to deceive a
consular or immigration officer. Further, the representation must have been
believed and acted upon by a consular officer or other U.S. official (see Matter
of G, 7 I. & N. Dec. 161 (BIA 1956)). On the other hand, a "willful misrepresentation"
does not require either an intent to deceive or that the officer either
believes or acted upon the false representation. (See Matter of S and B-C, 9
I. & N. Dec. 436, 448-449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I.
& N. Dec. 288 (BIA 1975)).
b. (U) Most cases of INA
212(a)(6)(C)(i) ineligibility involve
"material misrepresentations" rather than "fraud" since
determining that an alien had the intent to deceive an officer and that the
fraud was believed and acted upon is a higher legal standard. As a result, the
Notes in this section will deal principally with the interpretation of
"material misrepresentation.
9 FAM 302.9-4(B)(3) (U)
Interpretation of the Term Misrepresentation
(CT:VISA-894; 07-16-2019)
a. (U) "Misrepresentation"
Defined: As used in INA 212(a)(6)(C)(i), a misrepresentation is an
assertion or manifestation not in accordance with the facts. Misrepresentation
requires an affirmative act taken by the alien. A misrepresentation can be
made in various ways, including in an oral interview or in written
applications, or by submitting evidence containing false information.
b. (U) Differentiation Between
Misrepresentation and Failure to Volunteer Information: In determining
whether a misrepresentation has been made, it is necessary to distinguish
between misrepresentation of information and information that was merely
concealed by the alien's silence. Silence or the failure to volunteer
information does not in itself constitute a misrepresentation for the purposes
of INA 212(a)(6)(C)(i).
c. (U) Misrepresentation Must Have
Been Before a U.S. Official: For a misrepresentation to fall within the
purview of INA 212(a)(6)(C)(i), it must have been made to an official of the
U.S. Government; generally speaking, the official will normally be either a
consular officer or a Department of Homeland Security (DHS) officer.
d. (U) Misrepresentation Must be Made
on Alien's Own Application: The misrepresentation must have been made
by the alien with respect to the alien's own visa application or application
for admission to the United States, including any information provided in
support of the application. Misrepresentations made in connection with some
other person's visa application or application for admission to the United
States do not fall within the purview of INA 212(a)(6)(C)(i) but may be
considered with regard to the possible application of INA 212(a)(6)(E).
e. (U) Misrepresentation Made by
Applicant's Agent or Attorney: The fact that an alien pursues a visa
application through an attorney or other third party does not serve to insulate
the alien from liability for misrepresentations made by such agents, if the
consular officer finds that the alien was aware of the action being taken in
furtherance of the application. This standard would apply, for example, where
a travel agent executed a visa application on an alien's behalf.
Similarly, an oral misrepresentation made by another person on behalf of an
alien at the time of application for admission to the United States does not
shield the alien from ineligibility under INA 212(a)(6)(C)(i), if the consular officer finds that the alien
was aware at the time of the misrepresentation made on his or her behalf.
f. (U) Timely Retraction:
(1) (U) In General: A
retraction that is timely and voluntary may serve to purge a misrepresentation
and remove it from further consideration as a ground for the INA
212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) ineligibilities. Whether a retraction is
timely depends on the circumstances of the particular case. Generally, a
retraction is timely if it is made at the first opportunity and before the
conclusion of the same proceeding during which an individual made the
misrepresentation. A determination of whether a retraction is timely is made on
a case-by-case basis. If the applicant has personally appeared and been
interviewed, the retraction must have been made during the initial interview
with the officer. If the misrepresentation has been noted in a visa
application that was not submitted in person by the applicant, the applicant
must be called in for a personal interview and the retraction must be
voluntarily made during that interview. In all cases in which you become aware
that the applicant made a misrepresentation that might be material, you should
warn the applicant of a potential ineligibility under INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) and confront the
applicant with the misrepresentation. The applicant must correct his or her
representation before being exposed by the U.S. Government official and before
the conclusion of the proceeding during which he or she made the false
statement. A retraction can be found to be voluntary and timely if it was made
in response to an officers questions during which the officer gave the applicant
a chance to explain or correct a potential misrepresentation.
(2) (U) Specific Examples: A
retraction made before primary inspection by a DHS officer at a port of entry
may be timely, depending on the nature, circumstances, and timing of the specific
retraction. Generally, retractions in secondary inspection based on a
misrepresentation in or before primary inspection at a port of entry would not
be considered timely. Willful material misrepresentations made as part of a
petition filing(such as, for example, signing a fraudulent marriage certificate
that supports the petition or submitting a fraudulent degree in connection with
an employment petition) which are then used subsequently either in support of
an adjustment of status application filed with USCIS or in an immigrant visa application cannot be
considered to be timely retracted by the applicant at the time of the
adjustment of status or visa application interview.
g. (U) Activities that May Indicate A
Possible Violation of Status or Conduct Inconsistent with Status
(1) (U) In General:
(a) (U) In determining whether a
misrepresentation has been made, some questions may arise from cases involving
aliens in the United States who have performed activities that are inconsistent
with representations they made to consular officers or DHS officers when
applying for admission to the United States, for a visa, or for another
immigration benefit. Such cases occur most frequently with respect to
aliens who, after being admitted to the United States, engage in activities for
which a change of status or an adjustment of status would be required, without
the benefit of such a change or adjustment of status.
(b) (U) The fact that an
alien's subsequent actions are inconsistent with what was represented at the time
of visa application, admission to the United States, or in a filing for another
type of benefit does not automatically mean that the alien's intentions were
misrepresented at the time of either the visa application or application for admission
to the United States. To conclude there was a misrepresentation, you
must make a finding that there is direct or circumstantial evidence sufficient
to meet the "reason to believe standard, which requires more than mere
suspicion and is akin to probable cause. See In re Jose Manuel Isabel Diaz
(BIA Dec. 30, 2013). If the activities happened within 90 days after the visa
application and/or application for admission to the United States (typically
you are looking at activities after entry into the United States), please see
paragraph (2) below regarding the 90 day rule.
(c) Unavailable
(2) (U) Inconsistent Conduct Within
90 Days of Admission to the United States:
(a) (U) If an alien engages in
conduct inconsistent with his or her nonimmigrant status within 90 days of visa
application or admission to the United States, as described in subparagraph
(2)(b) below, you may presume that the applicant made a willful
misrepresentation (i.e., you may presume that the applicant's representations
about engaging in only status-compliant activity were willful
misrepresentations of his or her true intentions in seeking a visa or admission
to the United States). You must provide the applicant with the opportunity to
rebut the presumption of misrepresentation by verbally presenting the applicant
with your factual findings as to why you believe he is ineligible 6C1.
(b) (U) Inconsistent Conduct: For
purposes of applying the 90-day rule, conduct that violates or is otherwise
inconsistent with an aliens nonimmigrant status depends on the nonimmigrant
status the applicant has/had and the activities of the applicant in such status,
including, but not limited to:
(i) (U) Engaging in
unauthorized employment on B1/B2 nonimmigrant status. (Note: Certain activities
may not constitute unauthorized employment, such as those permissible under 9 FAM
402.2-5(E), and you should clarify an
applicant's employment activities when make a 6C1 finding under the 90 day rule);
(ii) (U) Enrolling in a course
of study, if such study is not authorized for that nonimmigrant classification
(e.g., B1/B2 status);
(iii) (U) A nonimmigrant in B
status, marrying a United States citizen or lawful permanent resident and
taking up residence in the United States. (Note: to establish that an applicant
took up residence in the United States before/after marrying a U.S. citizen or
LPR, post may take into account whether the applicant signed a long-term lease
or obtained a mortgage, bills in the applicants name, whether the applicant
obtained a local drivers license, and any other evidence that may support a
finding that the applicant took up residence in the United States); or
(iv) (U) Undertaking any other
activity for which a change of status (NIV to NIV) or an adjustment of status
(NIV to IV) would be required, without the benefit of such a change or
adjustment. (Note: Simply filing for a change of status or adjustment of
status is not in itself sufficient to support a presumption of
misrepresentation under the 90 day rule; the alien must also engage in conduct
inconsistent with authorized status without the benefit of such a change of
status. Moreover, if an alien engages in the activities for which he/she was
admitted, such as to study on a F1 visa, but also engages in unauthorized work
without seeking an employment authorization document (EAD), then that is
insufficient to justify a presumption of a misrepresentation.)
(c) (U) In cases where you are
unsure whether a particular activity is inconsistent with nonimmigrant status
or whether a violation occurred, you may request an AO from CA/VO/L/A.
(d) (U) A consular manager must
review all 6C1 findings of ineligibility under the 90 day rule.
(3) (U) Inconsistent Conduct After 90
Days: If an alien violates or engages in conduct inconsistent with his
or her nonimmigrant status more than 90 days after admission to the United
States, no automatic presumption of willful misrepresentation arises. If you
determine that the alien misrepresented his or her purpose of travel at the
time of the visa application or application for admission, you should apply a
traditional 6C1 analysis. See 9 FAM 302.9-4(B).
h. (U) Rebuttal Burden is on the Alien:
The burden of proof falls on the alien to rebut the consular officer's
findings of a material misrepresentation based on a violation of status/inconsistent
conduct within 90 days of admission. The alien must establish to the
satisfaction of the consular officer that his or her true intent at the time of
the presumptive willful misrepresentation was consistent with his or her
nonimmigrant status. You must provide the alien the opportunity to rebut by
verbally presenting the applicant with your factual findings.
(1) Unavailable
(2) (U) If you are satisfied that the applicant did not make a
material misrepresentation, and the alien is otherwise eligible, process the
case to conclusion.
(3) Unavailable
9 FAM 302.9-4(B)(4) (U)
Interpretation of the Term Willfully
(CT:VISA-543; 03-27-2018)
a. (U) Willfully Defined: The
term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to
mean knowingly and intentionally, as distinguished from accidentally,
inadvertently, or in an honest belief that the facts are otherwise. In order
to find the element of willfulness, it must be determined that the alien was
fully aware of the nature of the information sought and knowingly,
intentionally, and deliberately made an untrue statement.
b. (U) Misrepresentation is Alien's
Responsibility: An alien who acts on the advice of another person is
considered to be exercising the faculty of conscious and deliberate will in
accepting or rejecting such advice. It is no defense for an alien to say that
the misrepresentation was made because someone else advised the action unless
it is found that the alien lacked the capacity to exercise judgment.
9 FAM 302.9-4(B)(5) (U)
Interpretation of the Term Material Fact
(CT:VISA-769; 04-26-2019)
a. (U) Materiality Defined: The
Attorney General has declared the definition of "materiality" with
respect to INA 212(a)(6)(C)(i) to be as follows: "A misrepresentation
made in connection with an application for a visa or other documents, or with admission
to the United States, is material if either:
(1) (U) The alien is ineligible
on the true facts; or
(2) (U) "[T]he misrepresentation tends to
shut off a line of inquiry which is relevant to the alien's eligibility and
which might well have resulted in a proper determination that he or she be
inadmissible." (Matter of S- and B-C, 9 I. & N. Dec. 436, at 447.)
This is also often referred to as "The Rule of Probability."
(U) Note: Materiality is
determined in the context of the individual case as to whether the
misrepresentation was of direct and objective significance to the proper
resolution of the alien's application for a visa, admission to the United
States, or other immigration benefit.
b. (U) Ineligible Under The True Facts
(AKA "Independent Ground of Ineligibility"): The first part
of the Attorney General's definition of materiality comprises those cases where
the material facts disclose a situation wherein the alien is actually
ineligible for a visa as a matter of law. These are known as independent or
objective grounds of ineligibility. Independent grounds of ineligibility are
those encompassed within the provisions of INA 212(a)(1) through (10). Special
circumstances are as follows:
(1) (U) There are grounds of
ineligibility that are not permanent and which might be removed by operation of
law. For example, let us consider the case of an alien who was ineligible
under INA 212(a)(9)(B)(i)(I) and more than three years after departing from the
United States, made a misrepresentation about his or her prior unlawful
presence in the United States. He or she would not be concealing an
independent ground of ineligibility because by that point, three years had
passed meaning the alien was no longer ineligible under INA 212(a)(9)(B)(i)(I).
(2) (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause
exception found at INA 212(a)(2)(A)(ii)(II).An alien who makes a
misrepresentation about a criminal conviction for a crime involving moral
turpitude but who benefits from the sentencing clause exception would therefore
not be ineligible under INA 212(a)(2)(A)(i)(I) and
also not ineligible under INA 212(a)(6)(C)(i) for concealing an independent
ground of ineligibility.
(3) (U) In judicial and
administrative decisions about the applicability of INA 212(a)(6)(C)(i), a
distinction has been drawn between the INA 212 ineligibilities which, due to
the passage of time, may not be permanent and the other INA 212
ineligibilities which involve some measure of judgment on the part of the
consular or immigration officer. The essence of these decisions, according to
the Attorney General, is that:
(a) (U) The fact in question is
material if the final determination of relief from the ineligibility depends on
an exercise in judgment (i.e., one cannot assume that something is not material
on the mere possibility that the exercise of judgment may or may not have
erased the ground of ineligibility. );
(b) (U) The fact in question is
not material under the independent ground of inadmissibility prong of INA
212(a)(6)(C)(i)'s materiality test if the relief from the ineligibility is by
the automatic operation of law.
c. (U) Rule of Probability Defined:
(1) (U) In General: The
second part of the Attorney General's definition refers to a
"misrepresentation which tends to shut off a line of inquiry which is
relevant to the alien's eligibility and which might well have resulted in a
proper determination that he or she be inadmissible. "These are cases
where the exercise of further consular judgment is required. Past judicial and
administrative decisions concerning this part have evolved into what has become
to be known as the "rule of probability."
(2) (U) Tends Defined: The
word "tends" as used in "tended to cut off a line of
inquiry" means that the misrepresentation must be of such a nature as to
be reasonably expected to foreclose certain information from your knowledge.
It does not mean that the misrepresentation must have been successful in
foreclosing further investigation by you in order to be deemed material; it
means only that the misrepresentation must reasonably have had the capacity of
foreclosing further investigation.
(a) (U) If an alien was found
ineligible for a visa under a different and unrelated ground of ineligibility
(for example under INA 214(b)) a subsequent discovery that the alien had
misrepresented certain aspects of the case would not be considered material
since the misrepresented facts did not tend to lead you into making an
erroneous conclusion. Let us use the example of an applicant for a
nonimmigrant visa (NIV) who made a misrepresentation on the visa application by
claiming to have a well-paying job in order to show that the applicant has a
residence abroad, but before the misrepresentation was discovered, the visa was
refused because the alien could not, on the known facts, qualify as a nonimmigrant.
The subsequent discovery that the applicant misrepresented his well-paying job
and is in truth unemployed would not support a finding of materiality because
it had bearing on the properly-resolved adjudication of the case.
(b) (U)"The Post Files Exception":
If the truth of the fact being misrepresented is readily available to
you through consular systems, or through reference to the post's own files, it
cannot be said that the alien's misrepresentation tended to cut off a line of
inquiry since the line of inquiry was readily available to you. "Readily
available" means that the consular officer was aware of it at the time of
the initial visa interview, so that the consular officer was able to engage
with the applicant in regard to the information. If the information became
known after the visa interview, the information was not "readily
available" and thus the post files exception would not apply.
(c) Unavailable
(3) (U) Questionable Cases:
Questions sometimes arise concerning the effect on INA 212(a)(6)(C)(i) ineligibility of a false document presented in
support of an application, or a false statement made to you, each of which
purports to establish a fact which is material to the application for a visa,
but which, in the case of the document, is so poorly crafted, or in the case of
the statement is so unbelievable as to lack credibility from the time it was
first presented. Even in cases where there is an obvious lack of credibility,
if the document or statement is offered for the purpose of establishing a fact
which would be material if the information in the document or statement were to
be accepted as truthful, you may consider that the document or statement
"tends" to cut off a line of inquiry.
(4) (U) Facts Considered Material:
(a) (U) Residence
and Identity:
(i) (U) The Board of
Immigration Appeals has held that misrepresentations of residence and identity
are not automatically material and must be considered as any other
misrepresentation. That means they can be material for purposes of
212(a)(6)(C)(i) if the alien is ineligible on the true facts or the
misrepresentation tends to cut off a relevant line of inquiry which might have
led to a proper finding of ineligibility. (For example, an applicant who is an
imposter to a visa, or other document presented to seek admission to the United
States or other immigration benefit, would be ineligible under 212(a)(6)(C)(i)).
(ii) (U) Misrepresentations
regarding identity often also involve an independent ground of ineligibility if
they involve the use of a false identity in a passport. INA 212(a)(7)(B) makes inadmissible any alien not in possession
of a valid passport. The definition of a passport in INA 101(a)(30) requires that the document show the bearer's
"identity." Therefore, an alien who applies for a visa or for admission
to the United States using a passport issued in a false identity to which they
have no legitimate claim would not have a valid passport as defined under the
INA and would then be inadmissible under the independent ground of INA
212(a)(7)(B); and thus also ineligible
under INA 212(a)(6)(C)(i). This does
not apply, however, where the alien uses a nickname, some other reasonable
variant of a name, a legally changed name, or any other name for which the
alien has some legitimate entitlement.
(ii) Unavailable
(iii) Unavailable
(b) (U) Misrepresentations
Concerning Previous Visa Applications:
(i) (U) A misrepresentation
by an immigrant visa applicant concerning a previous visa application would not
be considered to be material unless the misrepresentation also concealed the
existence of an independent ground of inadmissibility or the misrepresentation
is now directly relevant to the current visa case.
(ii) (U) A nonimmigrant visa
applicant's misrepresentation of the fact that the applicant was previously
refused an NIV under INA 214(b) is not, in
itself, a material misrepresentation. Where the misrepresentation, however,
conceals not only the fact of the previous refusal, but also objective
information not otherwise known or available to you, there may be a basis for
finding that the absence of such facts tended to cut off a line of inquiry and
thus rendered the misrepresentation material.
(iii) (U) Electronic System for
Travel Authorization (ESTA): A misrepresentation made in an obtain ESTA
application is material if it tends to shut off a line of inquiry that is
relevant to the aliens admissibility or eligibility for an ESTA authorization
and would predictably have disclosed other facts relevant to such admissibility
or eligibility; or if the alien was ineligible for ESTA under the true facts
(5) (U) Application of Phrase Which
Might Have Resulted in a Proper Determination of Exclusion: As
mentioned above, the second part of the Attorney General's definition refers to
a "misrepresentation which tends to shut off a line of inquiry which is
relevant to the alien's eligibility and which might well have resulted in a
proper determination that he or she be inadmissible." In order to sustain
a finding of materiality, it must be shown that the misrepresentation was of
basic significance to the alien's eligibility for a visa. In other words, the information
concealed by the misrepresentation must, when balanced against all the other
information of record, have been controlling or crucial to a final decision of
the alien's eligibility to receive a visa.
(6) (U) The True Facts:
(a) (U) An applicant will never
be ineligible under INA 212(a)(6)(C)(i) if he or she can demonstrate
eligibility on the true facts. For this reason, an assessment of ineligibility
under this ground is not complete until you have considered (to the extent
possible) the true facts in light of the applicant's misrepresentation. The
applicant bears the burden of establishing the true facts and bears the risk
that uncertainties caused by his or her misrepresentation may be resolved
against the applicant. However, if the true facts support a finding that the
alien is eligible for a visa, the misrepresented fact is not material.
(i) (U) If an alien was to
make a misrepresentation to attempt to qualify for immigrant visa (IV) status
and it was discovered that the alien was, in truth, entitled to another equally
advantageous immigrant visa status, the misrepresentation would not be
considered to be material.
(ii) (U) For example, if the
son or daughter of a U.S. citizen were to misrepresent marital status as being
unmarried for the purpose of qualifying for first preference status, and was,
in fact, married and thus qualified for only third preference consideration,
and the third preference was currently available for the alien's state of
chargeability, the misrepresentation should not be considered material.
If, however, there were a waiting period for third preference applicants in the
state of the alien's chargeability or world-wide, the alien must then be found
to have committed a willful, material misrepresentation since the alien was
trying to qualify for a more advantageous immigrant visa status by committing a
misrepresentation.
(b) (U) Once the consular
officer finds that a misrepresentation was made by an alien, the burden is on the
alien to establish that the true facts support eligibility for the visa class
sought or that, had the consular officer known the truth, a visa refusal would
not properly have been made. Consular officers should be receptive to any
further evidence the alien may provide to establish qualification for the visa
class sought under the true facts.
9 FAM 302.9-4(B)(6) Unavailable
(CT:VISA-894; 07-16-2019)
a. Unavailable
b. Unavailable
c. (U) However, if DHS has made a 6C1 or an ER6 entry which
appears in CLASS, you must assume that a formal finding of inadmissibility was
made, and you should refuse the visa application under INA 212(a)(6)(C)(i),
noting that DHS had previously determined that the alien was ineligible under
INA 212(a)(6)(C)(i).
9 FAM 302.9-4(B)(7) (U)
Interpretation of the Terms Other Documentation and Other Benefit
(CT:VISA-543; 03-27-2018)
a. (U) Other Documentation:
(1) (U) The "other
documentation" mentioned in the text of INA 212(a)(6)(C)(i) refers to any
document relating to an application, admission, grant of deferred action, or
any other immigration benefit. This includes, but is not limited to, such
documents as:
(a) (U) Reentry permits;
(b) (U) Border crossing
identification cards;
(c) (U) Electronic System for
Travel Authorization (ESTA);
(d) (U) U.S. Coast Guard
identity cards; and
(e) (U) U.S. passports (which
also may result in a finding of INA 212(a)(6)(C)(ii).
(f) (U) Other documents that
are issued pursuant to provisions of the INA, such as Form I-20, Certificate of
Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language
Students; all immigrant and nonimmigrant petitions; and labor certifications.
However, the other elements of an ineligibility finding under INA
212(a)(6)(C)(i) may not be present unless and until the alien applies for a
visa or seeks a change or adjustment of status.
b. (U) Other Benefit Provided Under This Act: The
term "other benefit provided under this Act" refers to any
immigration benefit listed in the INA, including, but not limited to requests
for extension of stay, change of status, consent to reapply for admission,
waivers, employment authorization, advance parole, voluntary departure under
INA 240B, and adjustment of status.
c. (U) Other Forms: If you
determine a visa applicant made a material misrepresentation in an application
or request submitted to DHS that is not listed above as other documentation
and is not another benefit provided under this Act, the alien may still be ineligible
for fraud and/or willful misrepresentation of a material fact under the
following conditions:
(1) (U) If the form was
submitted in support of an immigration benefit under the INA, such as an
employment authorization, or was subsequently used to gain another immigration
benefit, such as parole under INA 212(d)(5), including
advance parole, then such fraud or material misrepresentation will render the
applicant ineligible under INA 212(a)(6)(C)(i).
(2) (U) If the immigration
benefit sought was not granted, you must request an AO from CA/VO/L/A. See 9 FAM 304.3-2 and 302.9-4(C). In the AO, describe the form
submitted to DHS by the visa applicant and the nature of the misrepresentation
made.
9 FAM 302.9-4(B)(8) (U)
Additional Information
(CT:VISA-757; 04-01-2019)
a. (U) Misrepresentations in Family
Relationship Petitions: USCIS retains exclusive authority to deny or
revoke family-relationship immigrant visa (IV) petitions. Thus, a
misrepresentation with respect to entitlement to the classification based on
the relationship, e.g., a sham marriage in an IR-1 case, cannot be deemed
material as long as the petition remains valid. Upon discovery of a
misrepresentation, you must return the petition to the appropriate USCIS office
via the National Visa Center. If the petition is revoked, the materiality of
the misrepresentation is established. In some cases, the relationship and
petition may still be valid, but the alien may misrepresent eligibility for the
classification in a different way that is not relevant to the petition's
validity, in those cases, the consular officer retains the authority to make a
INA 212(a)(6)(C)(i) determination.
b. (U) DS-160 Question on a Visa
Petition Being Filed on Your Behalf: The Form DS-160 asks Has anyone ever filed an immigrant
petition on your behalf with the United States Citizenship and Immigration
Services? An applicant who is the principal beneficiary (i.e., the
individual for whom the petition was filed), such as the family member in a
Form I-130 petition or the intended
employee in a Form I-140 petition, who
answers "no" to this question should generally be considered to have
made a misrepresentation. Similarly, an applicant who has self-petitioned
(i.e., filed an immigrant petition on their own behalf), such as an alien of
extraordinary ability or self-petitioning special immigrant, who answered the
question "no" should generally be considered to have made a
misrepresentation. In either case (whether as a beneficiary or
self-petitioner), you must still determine whether such a misrepresentation was
willfully made and whether it was material per 9 FAM
302.9-4(B)(1) above. For example, an
applicant who credibly claimed that she was unaware that her brother filed a
fourth preference family petition 10 years ago may have made a
misrepresentation (i.e., it was a statement not in accordance with the truth),
but it would not be considered a willful misrepresentation. An applicant who
is the spouse or child of the principal beneficiary of a petition, even when
named in the petition, would not make a misrepresentation by answering "no"
to this question.
c. (U) Attempts to Obtain Visa by
Bribery: An attempt by an applicant to obtain a visa or admission to
the United States through bribery of a U.S. Government employee is an attempt
to perpetrate fraud on the U.S. Government and will result in ineligibility
under INA 212(a)(6)(C)(i) due to fraud. The bribe must be directed to a
consular officer, a member of posts Locally Employed Staff, or an immigration
officer. Ordinarily, no advisory opinion is required, but posts should report
the circumstances of all such cases to the appropriate Departmental offices;
e.g., CA/VO/L/A, the Office of Fraud Prevention Programs (CA/FPP), and the Visa
Fraud Branch (DS/CR/CFI).
9 FAM 302.9-4(C) (U) Advisory
Opinions
9 FAM 302.9-4(C)(1) (U) AO
Required
(CT:VISA-869; 06-24-2019)
(U) You are only required to
submit an AO for a 6C1 finding where the FAM specifically states that an AO is
required. An AO is required in the following cases and must be submitted
formally (unless the FAM specifies that the AO may be submitted informally via
email to CA/VO/L/A):
(1) (U) Where the applicant
presented fraudulent documentation related to establishing qualification for a
particular visa classification but such documentation is not normally required
to qualify for such visa classification (e.g., if an applicant presents a false
bank statement or employment letter which are not strictly required to qualify
for a B visa, then post would need to submit an AO);
(2) (U) Where you find the
applicant has a legitimate claim to an alternate identity used (except you do
not need to submit an AO if the alternate identity involved use of a maiden
name, a nickname, or a legal and well-documented name change); and
(3) (U) Where you believe that
the applicant made a misrepresentation related to some benefit under the INA
other than seeking a visa or admission at a port of entry.
9 FAM 302.9-4(C)(2) Unavailable
(CT:VISA-757; 04-01-2019)
Unavailable
(1) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(2) Unavailable
(3) Unavailable
(a) Unavailable
(b) Unavailable
9 FAM 302.9-4(D) (U) Waivers
9 FAM 302.9-4(D)(1) (U)
Waivers for Immigrants
(CT:VISA-74; 03-03-2016)
a. (U) An applicant for an
immigrant visa (IV) who is inadmissible under provision (i) of INA 212(a)(6)(C)
in general may seek a waiver from DHS under INA 212(i) if:
(1) (U) The alien is the
spouse, son, or daughter of a U.S. citizen or a lawful resident; and
(2) (U) The Secretary of
Homeland Security is satisfied that the refusal of the aliens admission to the
United States would result in extreme hardship to the U.S. citizen or lawful
resident spouse or parent of such alien.
b. (U) If the applicant has any
questions about submitting an Immigrant Visa waiver he or she should be
directed to contact DHS.
9 FAM 302.9-4(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-693; 10-12-2018)
(U) You may, in your discretion,
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an alien
ineligible under INA 212(a)(6)(C)(i) provided the alien meets the criteria
specified in 9 FAM
305.4-3(B).
9 FAM 302.9-4(E) Unavailable
9 FAM 302.9-4(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-4(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-5 (U) Falsely
Claiming Citizenship - INA 212(a)(6)(C)(ii)
9 FAM 302.9-5(A) (U) Grounds
(CT:VISA-543; 03-27-2018)
(U) INA 212(a)(6)(C)(ii) renders
ineligible any alien who, after September 30, 1996, falsely claimed U.S.
citizenship in order to obtain a U.S. passport, entry into the United States,
or any other benefit under any U.S. State or Federal law. According to the
BIA, "a false claim to United States citizenship falls within the scope of
INA 212(a)(6)(C)(ii)(I) where there is direct or circumstantial evidence that
the false claim was made with the subjective intent of obtaining a purpose or
benefit under the (INA) or any other Federal or State law, and where United
States citizenship actually affects or matters to the purpose or benefit
sought." Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).
9 FAM 302.9-5(B) (U)
Application
9 FAM 302.9-5(B)(1) (U) In
General
(CT:VISA-757; 04-01-2019)
a. (U) An assertion by a visa
applicant that a false claim to citizenship was made by an attorney or other
third party on the applicants behalf does not serve to insulate the alien from
liability for misrepresentations made by such agents, if the consular officer
finds that the alien was aware of the action being taken in furtherance of the
application. This standard would apply, for example, where an oral
misrepresentation is made by another person on behalf of an alien at the time
of application for admission to the United States; the alien would not be
shielded from ineligibility under INA 212(a)(6)(C)(ii), if the consular officer finds that the
alien was aware at the time of the misrepresentation made on his or her
behalf.
b. (U) There is a difference
between making a false claim to U.S. citizenship and simply failing to
volunteer information. In determining whether a false claim has been
made, it is necessary to distinguish between a false claim to U.S. citizenship
and information that was merely concealed by the alien's silence. Silence
or the failure to volunteer information does not in itself constitute a false
claim to citizenship for the purposes of INA 212(a)(6)(C)(ii). However, as described above, an alien's
knowing acquiescence to another person's misrepresentation made on his or her
behalf is considered to be an act of misrepresentation.
c. (U) On December 6, 2014, the DHS
Office of the General Counsel issued an opinion concluding that:
(1) (U) Only a knowingly false
claim can support a charge that an individual is ineligible under INA
212(a)(6)(C)(ii). The individual claiming
not to know that the claim to citizenship was false has the burden of
establishing this affirmative defense by the appropriate standard of proof (clearly
and beyond doubt).
(2) (U) A separate affirmative
defense is that the individual was (a) under the age of 18 at the time of the
false citizenship claim; and (b) at that time lacked the capacity (i.e., the
maturity and the judgment) to understand and appreciate the nature and
consequences of a false claim to citizenship. The individual must establish
this claim by the appropriate standard of proof (clearly and beyond doubt).
d. (U) An applicant who has
been refused under INA 212(a)(6)(C)(ii) in
the past and believes that their case meets the requirements above may follow
standard post application procedures for submitting a new visa application.
e. Unavailable
f. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
(5) Unavailable
(6) Unavailable
(7) Unavailable
(8) Unavailable
g. Unavailable
h. Unavailable
i. Unavailable
j. Unavailable
9 FAM 302.9-5(B)(2) (U) Not
Retroactive
(CT:VISA-543; 03-27-2018)
(U) The provisions of INA
212(a)(6)(C)(ii) are not retroactive. It applies only to aliens who made false
claims to U.S. citizenship on or after September 30, 1996. An alien who
attempted or achieved entry to the United States before September 30, 1996,
with a false claim of U.S. citizenship is not ineligible under the terms of INA
212(a)(6)(C)(ii). They are, however, ineligible under 212(a)(6)(C)(i),
provided such claim was made to procure a visa, other documentation, admission
into the United States, or other benefit under INA. This is a significant
difference because the immigrant visa waiver provisions relating to INA
212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) are
not the same.
9 FAM 302.9-5(B)(3) (U)
Applies to Any Benefit Under Any U.S. Federal or State Law
(CT:VISA-757; 04-01-2019)
(U) A major difference between INA
212(a)(6)(C)(ii) and INA 212(a)(6)(C)(i) is that 212(a)(6)(C)(ii) applies to
false claims to U.S. citizenship "for any purpose or benefit" under
Federal or State law, while 212(a)(6)(C)(i) is limited to fraud or
misrepresentation in trying to procure a benefit under the INA. Like INA
212(a)(6)(C)(i), INA 212(a)(6)(C)(ii) applies
to an aliens who makes false claims to U.S. citizenship in order to obtain:
(1) (U) A U.S. passport;
(2) (U) Entry into the United
States; or
(3) (U) Other documentation or
benefit under the INA (provided such claim was made before a U.S. Government
official).
(a) (U) For example, an alien
who made a false claim to U.S. citizenship to obtain a government benefit or
for the purpose of voting in a Federal or State election would be inadmissible
under INA 212(a)(6)(C)(ii). (See also 9 FAM
302.12-5 regarding unlawful voters.)
A false claim to citizenship to avoid removal proceedings would also qualify as
a "purpose" under U.S. law.
(b) (U) In another example, if
an alien used the identity of a legal permanent resident to gain employment in
the USA, that alien would not be subject to INA 212(a)(6)(C)(ii.) However, if
an alien used the identity of or otherwise claimed to be a U.S. citizen in
order to gain employment in the USA, that would constitute an INA
212(a)(6)(C)(ii) ineligibility, per 9 FAM
302.9-5(B)(4) below.
9 FAM 302.9-5(B)(4) (U) False
Claims to U.S. Citizenship and Working in the United States
(CT:VISA-543; 03-27-2018)
(U) INA 212(a)(6)(C)(ii) also
applies for the purposes of INA 274A, which makes it unlawful to hire an alien
who is not authorized to work in the United States. Thus, an alien who
makes a false claim to U.S. citizenship to secure employment in violation of
INA 274A would be ineligible under INA 212(a)(6)(C)(ii).
9 FAM 302.9-5(B)(5) (U)
Citizenship Claims Made to Other Than U.S. Government Officials
(CT:VISA-543; 03-27-2018)
(U) INA 212(a)(6)(C)(ii) does not
require that the false claim to U.S. citizenship be made to a U.S. official.
INA 212(a)(6)(C)(ii) specifically says "under this Act (including section
274A) or other Federal or State law." Thus, the false claim may have been
made to a State or Federal Government official outside the Department of State
or DHS, a prospective employer to circumvent INA 274A, or any other relevant
person in the effort to obtain a benefit under U.S. Federal or State law.
9 FAM 302.9-5(B)(6) (U)
Exception
(CT:VISA-74; 03-03-2016)
(U) The Child Citizenship Act of
2000 (section 201(b) of Public Law 106-395) added an exception for
inadmissibility under INA 212(a)(6)(C)(ii) for an alien who falsely claimed
citizenship if:
(1) (U) Each parent is or was
a U.S. citizen by birth or naturalization;
(2) (U) The alien resided
permanently in the United States prior to the age of 16; and
(3) (U) The alien reasonably
believed at the time of such violation that he or she was a U.S. citizen.
9 FAM 302.9-5(C) Unavailable
(CT:VISA-543; 03-27-2018)
Unavailable
9 FAM 302.9-5(D) (U) Waivers
9 FAM 302.9-5(D)(1) (U)
Waivers for Immigrants
(CT:VISA-543; 03-27-2018)
(U) There is no immigrant visa
waiver available under the law for an alien who is ineligible under INA
212(a)(6)(C)(ii).
9 FAM 302.9-5(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-543; 03-27-2018)
(U) You may, at your discretion,
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an alien
ineligible under INA 212(a)(6)(C)(ii) provided the alien meets the criteria
specified in 9 FAM
305.4-3(H).
9 FAM 302.9-5(E) Unavailable
9 FAM 302.9-5(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-5(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-6 (U) Stowaways - INA
212(a)(6)(D)
9 FAM 302.9-6(A) (U) Grounds
(CT:VISA-74; 03-03-2016)
(U) INA 212(a)(6)(D) provides that
any alien who is a stowaway is inadmissible.
9 FAM 302.9-6(B) (U)
Application
9 FAM 302.9-6(B)(1) (U)
Defining Stowaway
(CT:VISA-757; 04-01-2019)
(U) INA 101(a)(49) defines
"stowaway" as "any alien who obtains transportation without the
consent of the owner, charterer, master or person in command of any vessel or
aircraft through concealment aboard such vessel or aircraft. A passenger
who boards with a valid ticket is not to be considered a stowaway."
9 FAM 302.9-6(B)(2) (U)
Applying INA 212(a)(6)(D)
(CT:VISA-74; 03-03-2016)
(U) The fact that a person may
have been a stowaway in the past does not in itself make the person ineligible
to receive a visa.
9 FAM 302.9-6(C) (U) Not
Applicable at the time of Visa Application
(CT:VISA-543; 03-27-2018)
(U) INA 212(a)(6)(D) is not
applicable at the time of visa application because it applies only to aliens arriving
in the United States as stowaways.
9 FAM 302.9-6(D) (U) Waiver
9 FAM 302.9-6(D)(1) (U)
Waivers for Immigrants
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(6)(D) is not
applicable at the time of visa application.
9 FAM 302.9-6(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(6)(D) is not
applicable at the time of visa application.
9 FAM 302.9-7 (U)
"Smugglers" or ALIENS Assisting other Aliens to enter the uSA in
Violation of Law - INA 212(a)(6)(E)
9 FAM 302.9-7(A) (U) Grounds
(CT:VISA-74; 03-03-2016)
(U) INA 212(a)(6)(E) provides that
any alien who at any time...knowingly... has encouraged, induced,
assisted, abetted or aided...any other alien...to enter or to try to enter
the United States in violation of law is ineligible for a visa and
inadmissible to the United States.
9 FAM 302.9-7(B) (U)
Application
9 FAM 302.9-7(B)(1) (U)
Defining Any Alien
(CT:VISA-543; 03-27-2018)
(U) All aliens, including lawful
permanent residents seeking reentry into the United States, are potentially
subject to this provision. However, the Secretary of Homeland Security may
waive ineligibility (see 9 FAM
302.9-7(D)) for:
(1) (U) An immigrant visa
applicant where the applicant sought to assist only an individual who was his
spouse, child or parent at the time of the assistance, or
(2) (U) A permanent resident
alien who is returning to the United States under the conditions found in INA
211(b), i.e., one who returns under circumstances not requiring a returning
resident visa (within one year without a reentry permit, or within a maximum of
two years with a reentry permit).
(U) Note: If an alien has
a question regarding immigrant visa waivers or waivers for legal permanent
residents, the alien should be directed to contact DHS directly.
9 FAM 302.9-7(B)(2) (U) Visa
Ineligibility Applied Retroactively
(CT:VISA-543; 03-27-2018)
(U) The conduct which is
proscribed under this section may have occurred at any time in the past.
Therefore, there will be cases in which an alien who was previously not
ineligible under INA 212(a)(6)(E)(including prior to June 1, 1991) may
currently be ineligible for a visa for the same conduct.
9 FAM 302.9-7(B)(3) (U) Alien
Must Act Knowingly
(CT:VISA-757; 04-01-2019)
(U) A key element of the new INA
212(a)(6)(E) provision is that the smuggler (e.g., an alien who is attempting
to assist or assisting another alien) must act knowingly to encourage,
induce, or assist an alien to enter the United States in violation of law.
In other words, in order to find an alien ineligible under this provision, the
consular officer must find that the smuggler is or was aware of sufficient
facts such that a reasonable person in the same circumstances would conclude
that his or her encouragement, inducement, or assistance could result in the
entry of the alien into the United States in violation of law. Further, the
smuggler must act with intention of encouraging, inducing, or assisting the
alien to achieve the entry in violation of law.
9 FAM 302.9-7(B)(4) (U)
Encourage, Induce, Assist, Abet, or Aid
CT:VISA-757; 04-01-2019)
a. (U) The actions for which a
smuggler might be found ineligible are numerous. The acts generally involve
an "affirmative act of assistance," that is, an act or acts that are
of direct encouragement, inducement or assistance to the alien's attempted
entry in violation of law. Some examples include but are not limited to:
(1) (U) Prior to the alien's
entry into the United States, offering an alien a job under circumstances where
it is clear that the alien will not enter the United States legally in order to
accept the employment, or
(2) (U) Physically bringing an
alien into the United States in violation of law.
(3) (U) Aiding an alien in any
manner to arrange for entry into the United States in violation of law
b. (U) With regard to a visa
application, an alien who either knowingly makes false oral or written
statements or knowingly provides fraudulent documents on behalf of any visa applicant,
including a family member, is ineligible under this section, provided the
false statement was material under the INA 212(a)(6)(C)(i) standards for
materiality);
c. (U) With regard to admissions at
the Port of Entry: INA 212(a)(6)(E) relates to assisting aliens to enter
the United States in violation of law, and therefore where the assistance
relates to a misrepresentation in another aliens application for admission to
the United States, it would only be considered a violation of law if the misrepresentation
meets the standards for a INA 212(a)(6)(C)(i) finding.
9 FAM 302.9-7(B)(5) (U) Any
Other Alien" Effect of Revision on Family Related Smuggling
(CT:VISA-757; 04-01-2019)
(U) Encouraging, inducing, or
assisting any other alien, even close family members, to enter the United
States illegally can result in ineligibility under INA 212(a)(6)(E). This is in contrast to the previous version of
this law (INA 212(a)(31)) which was interpreted to exclude actions on behalf of
close family members where the sole motive for the actions was family affection
and not financial or other gain.
9 FAM 302.9-7(C) Unavailable
(CT:VISA-666; 08-24-2018)
Unavailable
9 FAM 302.9-7(D) (U) Waivers
9 FAM 302.9-7(D)(1) (U)
Waivers for Immigrants
(CT:VISA-757; 04-01-2019)
a. (U) With respect to an
immigrant, pursuant to INA 212(d)(11), the Secretary of Homeland Security may,
in his or her discretion for humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest, waive visa ineligibility and
inadmissibility under INA 212(a)(6)(E) if the alien has encouraged, induced,
assisted, abetted, or aided only an individual who at the time of such action
was the aliens spouse, parent, son, or daughter. DHS has advised that a
waiver under INA 212(d)(11) is only available to immigrant visa applicants in
the following categories:
(1) (U) Immediate relatives
(IR categories);
(2) (U) Unmarried sons and
daughters of U.S. citizens;
(3) (U) Spouses and unmarried
sons and daughters of permanent resident aliens; and
(4) (U) Married sons and
daughters of U.S. citizens.
b. (U) The Secretary of
Homeland Security may also waive inadmissibility for a lawful permanent
resident who has sought to assist only his spouse, parent, son or daughter and
who is returning to the United States under the conditions found in INA 211(b),
i.e., one who returns under circumstances not requiring a returning resident
visa (within one year without a reentry permit, or within a maximum of two
years with a reentry permit).
c. (U) Because a waiver is
only available where the alien has encouraged, induced, assisted, abetted or
aided an individual who at the time of such action was the alien's spouse,
parent, son or daughter, it is of particular importance for consular officers
to make specific factual findings to include the date of the smuggling act and
the relationship, if known, to the individual(s) smuggled. The consular
officer should document these findings in the case notes.
d. (U) If the applicant has any
questions about submitting an Immigrant Visa waiver he or she should be
directed to contact DHS.
9 FAM 302.9-7(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-543; 03-27-2018)
(U) You may, in your discretion,
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an alien
ineligible under INA 212(a)(6)(E) provided the alien meets the criteria
specified in 9 FAM
305.4-3(H).
9 FAM 302.9-7(E) Unavailable
9 FAM 302.9-7(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-7(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-8 (U) Subject to
Civil Penalty - INA 212(a)(6)(F)
9 FAM 302.9-8(A) (U) Grounds
(CT:VISA-757; 04-01-2019)
(U) INA 212(a)(6)(F) renders
excludable any alien who is the subject of a final order under INA 274C,
rendered by an administrative law judge or by a court, for immigration related
document fraud.
9 FAM 302.9-8(B) (U)
Application
9 FAM 302.9-8(B)(1) (U)
Section 274C
(CT:VISA-272; 12-20-2016)
(U) INA 274C, entitled Penalties
For Document Fraud provides for civil penalties for persons determined by an
administrative law judge to have been involved in virtually any activity
regarding forged, altered or stolen documents for any purpose under the INA. The
issuance of a final order under this section in the name of an alien renders
the alien ineligible for visa issuance.
9 FAM 302.9-8(B)(2) (U) Final
Order
(CT:VISA-74; 03-03-2016)
(U) An order of the administrative
law judge under INA 274C becomes final thirty days after the date of issuance
unless the Attorney General modifies or vacates the order within that period. A
decision by the Attorney General modifying the original order shall be
considered a final order.
9 FAM 302.9-8(B)(3) (U)
Effect of Appeal
(CT:VISA-272; 12-20-2016)
a. (U) A final order under INA
274C may be appealed to the Court of Appeals within forty-five days of becoming
final. Nevertheless, for the purpose of visa adjudication, the order must be
considered final until such time as it is overturned.
b. (U) It is quite possible,
depending upon the facts of the individual case, that an alien who is the
subject of a final order under INA 274C might also be ineligible under INA
212(a)(6)(C) - Misrepresentation or INA 212(a)(9)(A) - Certain Aliens
Previously Removed or INA 212(a)(6)(E) - Smuggling.
9 FAM 302.9-8(C) (U) Advisory
Opinions
(CT:VISA-74; 03-03-2016)
(U) An AO is not required for a
potential INA 212(a)(6)(F) ineligibility; however, if you have a question about
the interpretation or application of law or regulation, you may request an AO
from CA/VO/L/A.
9 FAM 302.9-8(D) (U) Waiver
9 FAM 302.9-8(D)(1) (U)
Waivers for Immigrants
(CT:VISA-74; 03-03-2016)
(U) The Attorney General may, in
his or her discretion, grant a waiver for humanitarian purposes to an alien
ineligible to receive a visa under INA 212(a)(6)(F). The waiver under INA
212(d)(12) may be granted provided:
(1) (U) The alien is a lawful
permanent resident alien who temporarily proceeds abroad voluntarily and is
otherwise admissible as a returning resident under INA 211(b); or
(2) (U) The alien is seeking
admission under INA 201(b)(2)(A) (as an immediate relative) or 203(a) (as
family sponsored immigrant); and
(a) (U) The offense was solely
to assist the aliens spouse or child; and
(b) (U) No previous money
penalty was imposed under INA 274C.
9 FAM 302.9-8(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-74; 03-03-2016)
(U) You may, in your discretion,
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an alien
inadmissible under INA 212(a)(6)(F) provided the alien meets the criteria
specified in 9 FAM
305.4-3(H).
9 FAM 302.9-8(E) Unavailable
9 FAM 302.9-8(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-8(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-9 (U) Student Visa
Abusers - INA 212(a)(6)(G)
9 FAM 302.9-9(A) (U) Grounds
(CT:VISA-272; 12-20-2016)
(U) INA 212(a)(6)(G) renders
inadmissible for five years any student who enters the U.S. to study at a
private institution in F-1 status and then switches to a public school in
violation of INA 214(m)(2).
9 FAM 302.9-9(B) (U)
Application
9 FAM 302.9-9(B)(1) (U) In
General
(CT:VISA-272; 12-20-2016)
(U) INA 214(m) prohibits an alien
from obtaining F-1 student status to pursue a course of study at a:
(1) (U) Public elementary
school or publicly-funded adult education program; and
(2) (U) Public secondary
school, unless the:
(a) (U) Aggregate period of
study at such school does not exceed 12 months; and
(b) (U) The alien demonstrates
reimbursement of the full, unsubsidized per capital cost of the education.
9 FAM 302.9-9(B)(2) (U) Date
of Applicability
(CT:VISA-74; 03-03-2016)
(U) The provisions of INA
212(a)(6)(G) affect only aliens who received F-1 status after November 30,
1996, or aliens whose status was extended on or after that date. It does
not apply to aliens attending public schools or programs while in other
nonimmigrant status (e.g., F-2, E, H-4, J, or B-2even out-of-status B-2).
9 FAM 302.9-9(B)(3) (U)
Definitions
(CT:VISA-74; 03-03-2016)
a. (U) Defining
"Elementary": For the purposes of INA 214(m), the term
"elementary" means grades kindergarten through eighth.
b. (U) Defining "Secondary":
For the purposes of INA 214(m), the term "secondary" means grades
ninth through twelfth.
c. (U) Defining "Public":
A public school is any school that receives more than half of its financing
through State or local taxes or through Federal grants. The definition of
"public" can encompass "alternative" or "charter"
schools that allow parents to exercise extensive control over curriculum. It
can also encompass the term "corporate charter school"applied to
schools that have received major grants and land, buildings, or educational
materials from a corporation providing major employment opportunities in the
local area, unless it can be established that the value of the grant on an
ongoing annual basis exceeds the value of financing from public taxes and
grants.
d. (U) Defining "Publicly Funded
Adult Education": The Department of Homeland Security/U.S.
Citizenship and Immigration Service (DHS/USCIS) defines "publicly-funded
adult education" as programs run tuition-free at or in conjunction with
public secondary schools. It does not apply to schools such as community
colleges that receive public funds but charge students tuition.
9 FAM 302.9-9(B)(4) (U)
Participation in Language Programs
(CT:VISA-74; 03-03-2016)
(U) The provisions of INA 214(m)
prohibit an alien's participation in any publicly-funded language program.
9 FAM 302.9-9(B)(5) (U)
Transferring Schools
(CT:VISA-74; 03-03-2016)
(U) An alien may transfer from
public to private secondary school only if they reimburse the school as
indicated in 9 FAM
302.9-9(B)(8) and do not exceed the one-year time limitation.
Non-adherence to these requirements automatically voids the alien's visa and
renders the alien subject to INA 212(a)(6)(G) as a student abuser.
9 FAM 302.9-9(B)(6) (U)
Penalty for Violation of INA 214(m)
(CT:VISA-74; 03-03-2016)
a. (U) An alien who violates
the provisions of INA 214(m) becomes inadmissible under INA 212(a)(6)(G) and
must remain outside the United States for a continuous period of five years
before qualifying for another nonimmigrant visa (NIV).
b. (U) An alien who transfers
from private to public school has, under INA 101(a)(15)(F), violated his and/or
her status unless the student has reimbursed the school as noted in 9 FAM
302.9-9(B)(8).
9 FAM 302.9-9(B)(7) (U)
Determining Whether School is Public or Private
(CT:VISA-74; 03-03-2016)
(U) The responsibility for
documenting whether the school meets the definition of "public" rests
with the applicant. For example, a letter from a responsible official from the
public school district could resolve doubts as to whether a "corporate
charter school" is private.
9 FAM 302.9-9(B)(8) (U)
Determining Compliance With Financial Reimbursement Requirement
(CT:VISA-74; 03-03-2016)
a. (U) In General: The school
is responsible for determining what amount constitutes the "unsubsidized
per capita cost of education", the school's estimate of their per student
expenditure of public revenues (Federal, State, and local). This figure is not
necessarily the school's nonresident tuition. You should not inquire into the
calculation. However, you should not accept estimates that are unrealistically
low. In such cases, you should request additional information from the school
district. You must refer cases that appear to be deliberate attempts to
circumvent the law to the Office of Field Operations (CA/VO/F).
b. (U) Evidence of Financial
Reimbursement: The public school authority must actually collect the
student's reimbursement before a visa can be issued. DHS/USCIS has instructed
its ports of entry (POE) that, if the public school reimbursement is not
entered on the student's Form I-20, Certificate of Eligibility for Nonimmigrant
Student Status, with a notarized signature, the student must provide a notarized
statement on school district letterhead. A school district official (usually
the superintendent or someone designated by him or her) must sign the statement
that reimbursement has been made. To avoid complications at the POE, visa
applicants should provide the same evidence to qualify for an F-1 visa.
c. (U) Lack of Evidence of Financial
Reimbursement: You must refuse an applicant who cannot present evidence
of financial reimbursement under INA 221(g). You should advise the applicant
to arrange reimbursement directly with the school authority and return with
proof of payment.
9 FAM 302.9-9(B)(9) (U)
Twelve-Month Limit on School Attendance
(CT:VISA-74; 03-03-2016)
(U) INA 214(m) places a 12-month
limit on attendance at public secondary schools while in F-1 status.
Attendance at a secondary public school, while in a status other than F-1,
while in unlawful status, or prior to November 30, 1996, does not count against
the 12-month limit. You must not issue an F-1 visa if the proposed length of study
would exceed the 12-month limit.
9 FAM 302.9-9(C) (U) Advisory
Opinions
(CT:VISA-74; 03-03-2016)
(U) An AO is not required for a
potential INA 212(a)(6)(G) ineligibility; however, if you have a question about
the interpretation or application of law or regulation, you may request an AO
from CA/VO/L/A.
9 FAM 302.9-9(D) (U) Waiver
9 FAM 302.9-9(D)(1) (U)
Waivers for Immigrants
(CT:VISA-677; 09-21-2018)
(U) No waiver is available for
immigrant visa applicants found inadmissible under INA 212 (a)(6)(G).
9 FAM 302.9-9(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-272; 12-20-2016)
(U) You may, in your discretion,
recommend that DHS grant a waiver under INA 212(d)(3)(A) for an nonimmigrant
inadmissible under INA 212(a)(6)(G) provided the alien meets the criteria
specified in 9 FAM
305.4-3(H).
9 FAM 302.9-9(E) Unavailable
9 FAM 302.9-9(E)(1) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable
9 FAM 302.9-9(E)(2) Unavailable
(CT:VISA-272; 12-20-2016)
Unavailable