Material Misrepresentation / Fraud | Visarefusal Under 212(a)(6)(C)(i) And Remedies For Applicants

October 2, 2022
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Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) provides that "any alien or foreign national who by fraud or willfully misrepresenting a material fact seeks to procure (or sought to procure or has procured) a visa or admission into the United States or some other benefit provided under the INA is ineligible or inadmissible for life.” However, section 212(i) of the INA, provides for limited waivers from these inadmissibility findings.   If the foreign national is deemed inadmissible to the United States by USCIS, CBP, and a Consulate, the person cannot enter the United States without getting a waiver of inadmissibility or proving that the inadmissibility decision was erroneous.   In order for the applicant to be deemed inadmissible under INA Section 212(a)(6)(C)(i), the following elements must be proved:
  1. That the applicant has made misrepresentation and committed fraud;
  2. The misrepresentation made by the applicant was wilful;
  3. The fact misrepresented by the applicant was material; and
  4. The misrepresentation was done to obtain a visa, admission into the United States, or similar benefit provided under the INA.
  A misrepresentation is a statement made by either the visa applicant or his agent on his behalf which is not true. While silence is not considered a misrepresentation, the challenge of the applicant on the premises that the visa application was erroneously completed by a tour agency or visa consultant or that the applicant does not know English and hence misunderstood a question cannot ‘save’ the applicant.    A willful statement in this context is one that is made intentionally and deliberately to misrepresent, knowing it is not true. A charge that the applicant should have known it was a misrepresentation is not sufficient to find it as a wilful statement.   Materiality, in general, means a misrepresentation that might have led a consular officer to find a person ineligible for a visa. However, if the information is readily available for the consular officer to check in the consular database, then the misrepresentation cannot serve as the basis for a 6C finding. US immigration law does not stipulate a statute of limitations meaning that if a willful, material misrepresentation was committed at any time in the visa process — even 15–20 years ago — a consular officer can still permanently bar the applicant. Such decisions are, however, challengable.   Nonimmigrant Waivers   In addition to 212(a)(6)(C)(i)  provisions of inadmissibility on account of commission of fraud or material misrepresentation, other most common grounds for inadmissibility are:  
  1. History of criminal offenses, such as drug possession or shoplifting;
  2. Being accused of alien smuggling;
  3. Unlawful presence in the US longer than 6 months, subjecting applicants to a 3 to 10-year bar from entry into the US.
  Other than the individuals who are found inadmissible under security and other narrow areas, all other individuals barred from the United States can apply for a nonimmigrant waiver of inadmissibility, though each case needs to be analyzed in detail to determine the factual reason for inadmissibility.   There are two types of waivers of inadmissibility: one for immigrants - foreign nationals trying to obtain an immigrant visa or green card and another for nonimmigrants - foreign nationals trying to obtain or enter the US with a temporary visa such as an F1 student visa, L1 intracompany transfer visa, B2 tourist visa, or H1B work visa, among others. A nonimmigrant waiver may be approved for a one-year term and can be up to a five-year term in limited circumstances. The Consulate and DHS will consider the following factors when processing the waiver application:  
  1. The recency and seriousness of the violation that caused inadmissibility;
  2. The reasons why the foreign national is seeking admission or entry  to the US;
  3. The risk of harm to US public interests due to the entry of the applicant; and
  4. The proof and affirmation that the applicant does not intend to immigrate (except for H-1B and L visa applicants).
  Waiver Process A nonimmigrant waiver can be made at a US consulate in a nonimmigrant visa application, which if approved will be forwarded to the Department of Homeland Security (DHS), the final approver. If the consulate rejects the waiver application, the applicant may request the Department of State for a review. If DHS denies the application, the case is closed. In general, the entire process may be completed in 1–2 months. Many applicants believe that it will be difficult to obtain a waiver or enter the US again, once they are barred. The truth is that a waiver is available and there is always an option to challenge the determination of inadmissibility. With the right approach, there is always hope to get a waiver and we have successfully helped many such clients. Please contact us to find out how we can assist you if you are a waiver applicant.
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