Attorney Jeff Peek talks about what happens when a client, an immigrant, or their spouse or family member lies or makes a misrepresentation during the process, whether in the application itself or an interview.
What is a misrepresentation?
Here is an example. Let’s say you’re coming across the border, and the officer asks, “Where are you heading today?” You’re coming in on a tourist visa, and you say, “I’m going on to Austin to visit my parents.” Okay. That’s great. What if the truth is you’re going to Dallas to visit your American boyfriend, who you hopefully want to marry? Was that how big was that misrepresentation?
One of the questions to determine misrepresentation is:
- If the facts were known, would you have been excludable?
Had the officer known your intention was going to Dallas to see your boyfriend, does that block you automatically? No, not necessarily. Now, if your plan was I’m going to Dallas to marry my boyfriend and then apply for permanent residency, and you’re coming on a tourist visa, now you could be blocked because of the facts. You’re not supposed to come in on a tourist visa if you know you intended to stay and apply for residency. See the difference? One could be an innocent lie, but the other one’s a not so innocent lie.
2. Does your misrepresentation to the officer cut off or shut off a line of inquiry relevant to the alien’s eligibility?
What does that mean? Let’s go back to the example. If you had said, “Oh, I’m going to Dallas to visit my boyfriend.” What would the next question from the officer be? “Oh, how long have you been dating? Are you going to stay with him? How long are you planning to stay here?” And if in those lines of questions, the final, one of the answers would come out and be like, “Oh yeah, we got engaged. We’re going to get married next month.” Well, those answers would’ve then have made you excludable. Therefore, if you lie about the first question and had not told the truth about visiting your boyfriend, it didn’t let the officer continue the line of questions that could have made you excludable. That could be determined as willful misrepresentation.
It can get pretty tricky, and you need to be very careful. The best advice is, don’t lie to officers. If you have something in your past or have something about your plans that you feel like if you say the truth might cause you problems, talk to an immigration lawyer first and see how they would advise. Again, failing to mention something is not a lie. If there’s something about your trip that might’ve been excludable, but the officer never asked about you, you’re not misrepresenting by just maintaining silence. But if you say something that either is untrue or is not a good representation of the truth or as a flat out lie, you got problems.
What if you committed a misrepresentation, do you qualify for a waiver?
If immigration finds that you committed fraud or made what they call a willful misrepresentation, then you can be denied unless you qualify for a waiver. The waiver is not as easy to get, as you might think.
Qualifications for a waiver:
1. You have to have a qualifying relative.
It has to be a U.S. citizen or permanent resident spouse or fiancé, U.S. citizen or permanent resident parent. Notice you’re not allowed to use U.S. citizen or permanent resident children.
2. You have to demonstrate that the qualifying relative is going to suffer extreme hardship.
There are case law and articles about what constitutes extreme hardship. There’s regular hardship, extreme hardship, and extreme exceptional hardship. There are three different standards, so you have to speak with an attorney to see what qualifies as an extreme hardship.
It essentially means that the positive factors of your case outweigh the negative factors. Well, what could be some positives? There is a list published through USCIS that include:
– What are the facts and circumstances of the misrepresentation, how innocent was it? How deceitful was it?
– What were the reasons and motivations that the applicant had for making this fraud or willfully misrepresenting a fact to the officer?
– What was the age or mental capacity of the person?
– Has the applicant engaged in a pattern of fraud and deceit?
– Nature and the proceedings in which the applicant committed the fraud or willful misrepresentation?
You might be surprised, but misrepresentation happens quite often. The best way is to avoid it, to begin with. Honesty is the best policy, right? But if you do have those problems, we here at Peek & Toland are ready to help.