Copyright 2007 (Updated 2014)
A Lie Can Exclude You From the United
By James A. Bach, Esq.
The U.S. immigration system is based on the information
provided by the immigrants themselves, and it cannot work
unless the government is able to collect truthful
information. To protect the integrity of the system the
government has imposed severe penalties on those who
lie in their applications for visas, admission into the
U.S., or any other immigration benefit.
Basically, anyone who has made a misrepresentation to the
immigration authorities is excluded permanently from
the U.S. To create a permanent bar the misrepresentation
must have been "material." "Material" means that it would
tend to make a difference in granting the immigration
benefit sought by the person telling the lie. For example,
it would be a "material" misrepresentation if an applicant
for a visitorís visa tells the consular official that he is
not married when in fact he has a wife who lives in the U.S.
That is a "material" misrepresentation because he may not
really intend to visit, but to live with his wife
indefinitely in the U.S.
However, if the applicantís wife lives outside of the
U.S., and the applicant lies and says he is not married,
that might not be a "material" misrepresentation
because the consular official probably would not deny the
visitorís visa simply because the applicant is married.
On the other hand, if the applicant says that he is
married and that his wife lives with him in his home
country, but in fact he is single, that would be a material
misrepresentation. A person who has a wife to return to is
more likely to leave the U.S. at the end of his visit, and
that fact may influence the consular official in granting
the visitorís visa.
In addition to being material, the misrepresentation must
be "knowing". If a person makes a mistake, and provides
false information without intending to deceive the U.S.
government, she should not be found to be inadmissible.
However, when a person inadvertently makes a misstatement in
an immigration application, she should correct the
application as soon as she discovers that she made a
Once a knowing and material misrepresentation has been
made, the person who made it is inadmissible for life, and may
never be able to obtain permanent residence status (green
card). There are a few exceptions to this life-long bar.
First, those who wish to come to the U.S. temporarily with a
nonimmigrant visa (such as a visitorís visa or as a
temporary worker) may apply for a waiver. The waiver
application is submitted at the U.S. Embassy or Consulate
when applying for a visa, or at the port of entry if the
applicant already has a valid visa. The USCIS is fairly
liberal in granting the waiver for the nonimmigrant visa or
entry, and will consider such factors as the nature of the
misrepresentation, how long ago it was made, why the
applicant wishes to come to the U.S., how long he or she
will stay, and whether it is likely that the purposes of the
visit will be fulfilled.
There is no waiver for a person who is
because of a misrepresentation and who wishes to immigrate
(i.e., get a green card), unless that person is the
spouse or child of a U.S. citizen (USC) or lawful
permanent resident (LPR). In that case, the person seeking
the waiver must demonstrate that denial of the green card
would result in "extreme hardship" to his USC or LPR spouse
or parent. "Extreme hardship" is very difficult to prove.
Letís go back to the example of the person who is married
to a U.S. citizen who lives in the U.S., but who lies about
that when applying for the visitorís visa. Letís assume
further that he is successful in the lie and is issued a
visitorís visa. He arrives in the U.S., then applies for a
green card based on his marriage. In the process of
considering the green card application the USCIS discovers
that he lied about his marital status when he applied for
the visitorís visa, and obtains a copy of the false
visitorís visa application in which he claimed he was
single. He is found to be inadmissible. The prospective
immigrant then files an
application for a waiver of inadmissibility.
In order to approve the waiver application, the USCIS
must find that his removal from the U.S. would create an
extreme hardship to his wife. In making that determination,
the USCIS will balance all of the factors presented: the
nature of the lie, how long they were married, whether the
wife ever lived outside the U.S., and her ties to the U.S.
including family relationships, friends, language, clubs and
social organizations, and career. If she herself is a recent
immigrant to the U.S., and if most of her family lives in
the applicantís home country, the USCIS may conclude that it
would not be that much of a hardship for her to live with
her husband outside of the U.S. If she knew her husband was
inadmissible when she married him, that would be an important
factor. However, the waiver might be granted if she can
demonstrate that leaving the U.S. with her husband would be
a true hardship, that she visits her parents often and has
other close family ties, she has close friends or has
belonged to social organizations for several years, and the
language and customs of her husbandís home country would be
difficult for her.
The application for a waiver of inadmissibility must be
well-documented, with extensive evidence regarding the
claimed hardship. That evidence might involve affidavits
(statements under penalty of perjury) of family and friends,
evidence of the USCís accomplishments in the U.S., evidence
of community ties such as memberships in religious
organizations or clubs, and evidence of a flourishing career
(and also evidence of reduced career opportunities in the
applicantís home country). There may be special medical
needs that can best be addressed in the U.S. Because the
stakes are so high, care and time must be taken to present
the best possible picture of the wifeís happy life in the
U.S. and her bleak prospects in her husbandís home country.
If the application is denied, the denial can be appealed
to a review board (Administrative Appeals Office of the
USCIS), and additional evidence can be submitted with the
administrative appeal. If the government brings charges to
deport the applicant, the application and live witnesses can
be presented to an immigration judge. However, because the
decision to grant the waiver is discretionary, a denial by
the USCIS or by the immigration court cannot be appealed to
the federal or state courts.
In our office, we require that all of the information we
submit to the government is accurate, and it is crucial that
all of our clients are truthful in their applications and
with us. There are two reasons for this policy. First, it is
the ethical thing to do, and our system of government,
including our immigration system, depends on the good faith
of those who seek benefits from it. Second, even the
smallest lie may be material and could result in a permanent
exclusion from the U.S. A waiver of the permanent exclusion
may be possible in the limited circumstances described
above, but even if a waiver is available, it is difficult,
time-consuming and expensive to obtain. In most cases, with
time and diligence, we are able to help our clients realize
their immigration dreams. However, one lie could destroy
those dreams forever.