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 visitor’s 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 applicant’s 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 visitor’s 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 visitor’s 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 excludable. 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 mistake.

Once a knowing and material misrepresentation has been made, the person who made it is excludable 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 visitor’s 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 excludable 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.

Let’s 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 visitor’s visa. Let’s assume further that he is successful in the lie and is issued a visitor’s 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 visitor’s visa, and obtains a copy of the false visitor’s 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 applicant’s 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 husband’s 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 USC’s 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 applicant’s 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 wife’s happy life in the U.S. and her bleak prospects in her husband’s 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.