The immigration consequences of a false claim to U.S. citizenship
Foreign nationals in the U.S. and those attempting to enter the U.S. should be aware of the particularly serious consequences of a false claim to US citizenship. This is because a foreign national who falsely claims to be a U.S. citizen for any purpose or benefit under the Immigration and Nationality Act (INA) or any Federal or State law is permanently barred from immigrating to the United States (no green card) under the false claim to citizenship ground of inadmissibility, INA § 212(a)(6)(C)(ii). A false claim does not have to be made to a government official to result in a permanent bar. It may even be applicable to a false claim made to a private party such as an employer.
Effective September 30, 1996, the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) amended section 212(a) (6) (C) (ii) of the Immigration and Nationality Act with respect to foreign nationals who make false claims.
Before September 30, 1996, a false claim of U.S. citizenship was a misrepresentation that was a ground of inadmissibility. Before this date, a false claim must have been made to a government official. Furthermore such a misrepresentation was waivable under Section 212(i) for any immigrant based upon a showing of extreme hardship to a U.S. citizen or a lawful permanent resident spouse, son or daughter.
No false claim to citizenship waiver
If the false claim was made on or after September 30, 1996, the person is permanently inadmissible as there is no waiver available this 212(i) waiver was not available. Therefore a foreign national who made a false claim to U.S. citizenship on or after September 30, 1996, is permanently barred from immigrating to the United States. Under IIRIRA, a false claim may also result in criminal penalties. 18 USC §1015 (d)-(e).
Non-immigrant waiver may be available
However a foreign national who makes a false claim to U.S. citizenship may be eligible for a discretionary 212(d) (3) non-immigrant waiver. A 212(d) (3) waiver is a broad waiver for a non-immigrant who is inadmissible on any ground under INA 212(a) except certain security or foreign policy grounds. This non-immigrant waiver if granted allows a foreign national to return to the United States in any legitimate non-immigrant status – B2, E-2 or H-1B.
Challenging a False Claim to U.S. citizenship
Date of the claim – An analysis of a false claim of U.S. citizenship starts with a determination of when the claim was made. If the false claim was made before September 30, 1996, the misrepresentation may be waived using a 212(i) waiver. If the claim was made on or after September 30, 1996, the foreign national is permanently inadmissible.
Purpose of the claim – The false claim was not made for a purpose or benefit under the INA or under any Federal, State of local law. An immigration lawyer should analyze the claim to determine the purpose or benefit and whether such purpose or benefit is one that is regulated by the INA, Federal or State law.
False Claim to US citizenship by minor
At least one immigration judge has ruled that an unaccompanied minor lacks the requisite legal capacity to make a false claim to U.S. citizenship. Matter of Jane Doe, file number not provided (IJ Oct. 2005) (St. Paul, Minnesota), summarized at 83 Interpreter Releases 775 (Apr. 24, 2006). While minors making a false claim to US citizenship may be treated leniently as a matter of policy, adults knowingly making such a false claim are not.
Ambiguity of question – A false claim to U.S. citizenship may be challenged on the basis that the question was ambiguous or not understood because of language barriers. On a previous version of USCIS Form I-9, Employment Eligibility Verification, the employee was asked whether he or she was a “citizen or national” of the United States. A foreign national who indicated on I-9 that he was a “citizen or national” may have been claiming to be a national and not a citizen. For this reason USCIS form I-9 was revised to remove this ambiguity.