A “false claim” to U.S. citizenship is one of the grounds used to deny an immigrant visa application. This misrepresentation has severe consequences that may also adversely affect one’s ability to seek immigration relief in removal proceedings. What actually is a false claim to citizenship? What are its severe consequences?
Period of Time Misrepresentation Made
Before September 30, 1996, misrepresenting one’s citizenship and pretending to be a U.S. citizen to obtain immigration benefits is considered a ground for inadmissibility. This means that a foreign national who falsely claims to be a US citizen will not generally be able to obtain a green card based on an approved petition. The misrepresentation must be willful and material. To trigger the inadmissibility ground the false claim must be made to either a United States consular or immigration officer. It did not apply to a false claim made to a private employer.
Although it was a ground to deny an application for immigrant visa, there are waivers that may be available. This waiver application under Section 212(i) of the Immigration and Nationality Act may be approved if there is extreme hardship to qualifying relatives of the applicant.
After September 30, 1996, with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), the consequences of this provision became severe. It had become a ground for deportation in addition to it being a ground for denial of admission. This means that even if one is valid nonimmigrant or immigrant status, if a claim to U.S. citizenship is made the foreign national may still be held liable and risk being deported. Unlike the prior law, the 212(i) waiver is no longer available for misrepresentations made after September 30. 1996.
Misrepresenting on Form I-9
An individual who has no legal status to stay in the United States is usually without legal authority to work. But instead of remaining unemployed, the common unlawful scenario is to apply for any available U.S. job. Once accepted, they are asked to prove their status by accomplishing a USCIS Form I-9. This is the Employment Eligibility Verification which documents whether the new employee is authorized to work in the United States.
While representation to any employer will trigger the consequences of false claim, the prior I-9 form has a box which states “U.S. national or citizen”. If this box was checked, the undocumented immigrant may not face the permanent bar because the provision of law does not include false claim to U.S. nationality.
In 2009, the I-9 form was amended and the boxes of U.S. citizens and noncitizen national of the United States were separated. Hence, the undocumented who checked United States citizen to prove eligibility to work will suffer the consequences of the false claim to citizenship.
Possible Defenses
Various defenses may be raised. It depends on when the claim was made. Careful analysis of each case is crucial and that not all those who made the false claims will suffer the consequences. In fact the Department of Foreign Affairs Manual provides that “timely retraction” of false claim is one good possible defense.
Despite existence of possible defenses, it is still important to understand that to avoid serious consequences one should avoid making false claims as much as possible. While it may seem that in I-9 forms, checking the box of “lawful permanent resident” may be complicated as it will require more documents, falsely checking the box of U.S. citizen on the I-9 form carries irreversible errors and may bar receiving future immigration benefit.
(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)
