INS Memo on False Claims to U.S. Citizenship
Memorandum For:
All Regional Directors
All District Directors (including Foreign)
All Officers in Charge (including Foreign)
All Port Directors
All Service Center Directors
All Training Academies (Glynco and Artesia)
All Regional Counsels
All District Counsels
All Asylum Directors
From: Joseph R. Greene
Acting Associate Commissioner
Office of Programs
Subject: Section 212(a)(6)(C)(ii) Relating to False Claims to U.S. Citizenship
This memorandum addresses section 212(a)(6)(C)(ii) of the Immigration and Nationality Act (the Act), as amended by section 344(a) of the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRAIRA). This memorandum provides guidance on the implementation of the new provisions under section 212(a)(6)(C)(ii) of the Act with respect to aliens who have made false claims to U.S. citizenship. This memorandum also explains the differences between 212(a)(6)(C)(ii) of the Act and section 212(a)(6)(C)(i) of the Act relating to fraud or willful misrepresentation of a material fact in so far as false claims to U.S. citizenship are concerned.
General provisions. Section 344(a) of IIRAIRA created section 212(a)(6)(C)(ii) of the Act to render inadmissible any alien who falsely claims to be a U.S. citizen for any purpose or benefit under the Act, or under any other Federal or State law. Pursuant to section 344(c) of IIRAIRA, section 212(a)(6)(C)(ii) of the Act became effective on September 30, 1996. It applies only to false claims to U.S. citizenship made on or after September 30, 1996.
Section 212(a)(6)(C)(ii) of the Act applies not only to false claims to U.S. citizenship to obtain a benefit under the Act, but also to false claims for any purpose or benefit under any other Federal or State law. Therefore, an alien who made a false claim to U.S. citizenship to obtain any Federal or State benefit on or after September 30, 1996, would be inadmissible under section 212(a)(6)(C)(ii) of the Act. A false claim to U.S. citizenship for a "purpose" under Federal or State law would include, for example, voting.
It is not necessary for the claim to have been made to a U.S. Government official. The statutory language in section 212(a)(6)(C)(ii) of the Act is broad in scope and provides that the false claim may have been made "…for any purpose or benefit under this Act (including section 274A) or any other Federal or State law…" Thus, a false claim of U.S. citizenship can be made to a private individual, as the statutory language includes specific mention of 274A of the Act, and the employment verification procedures described under section 274A of the Act cover both Government and private employers. For example, an alien who makes a false claim of U.S. citizenship to a private employer on Form I-9 (Employment Eligibility Verification) on or after September 30, 1996, is inadmissible under section 212(a)(6)(C)(ii) of the Act.
Waiver availability. Section 344 of IIRAIRA did not create any waivers for immigrants found inadmissible under section 212(a)(6)(C)(ii) of the Act. Therefore, immigrants found inadmissible under section 212(a)(6)(C)(ii) of the Act are permanently inadmissible. Nonimmigrants, however, may seek the exercise of discretion under section 212(d)(3)(A) or (B) of the Act, as applicable.
False Claims to U.S. Citizenship Made Before September 30, 1996. Prior to the enactment of IIRAIRA, a false claim to U.S. citizenship was grounds for finding an alien inadmissible under section 212(a)(6)(C)(i) of the Act relating to fraud or willful misrepresentation of a material fact in certain cases. The fraud or material misrepresentation, however, must have been made to procure a specific benefit under the Act, such as a visa, admission, or immigration document (i.e. a U.S. passport). The fraud or material misrepresentation must also have been made to a U.S. government official. This is because requests for benefits under the U.S. immigration laws are made to U.S. Government officials. For example, a false claim made before September 30, 1996, to obtain a U.S. passport is cause for finding an alien inadmissible under section 212(a)(6)(C)(i) of the Act for fraud or willful misrepresentation of a material fact.
Practical Considerations. In considering a case where a false claim to U.S. citizenship has been made, Service officers should review the information on the alien to determine whether the false claim to U.S. citizenship was made before, on, or after September 30, 1996. If the false claim was made before the enactment of IIRAIRA, Service officers should then determine whether: (1) the false claim was made to procure an immigration benefit under the Act, and (2) whether such claim was made before a U.S. Government official. If these two additional requirements are met, the alien should be found inadmissible under section 212(a)(6)(C)(i) of the Act, and advised of the waiver requirements under section 212(i) of the Act. 1
If the false claim to U.S. citizenship was made on or after September 30, 1996, Service officers should then determine whether it was made to procure any immigration benefit under the Act or other type of benefit under Federal or State law. If so, the alien should be found inadmissible under section 212(a)(6)(C)(ii) of the Act. (Note: An alien who falsely claimed to a private employer on Form I-9 that he or she is a U.S. citizen need not be the subject of a civil penalty for document fraud under section 274C of the Act in order to be found inadmissible under section 212(a)(6)(C)(ii) of the Act). If the alien is an immigrant, the alien should be advised that no waiver is available. As noted above, nonimmigrants may seek the exercise of discretion under section 212(d)(3)(A) or (B) of the Act, as applicable.
Finally, it is possible for an alien to be charged with inadmissibility under both sections 212(a)(6)(C)(i) and (ii) of the Act for false claims to U.S. citizenship made on or after September 30, 1996. For example, an alien who made a false claim to U.S. citizenship on or after September 30 to gain admission at a Port-of-Entry would be inadmissible under section 212(a)(6)(C)(i) of the Act for having willfully misrepresented a material fact, and under section 212(a)(6)(C)(ii) of the Act for having made a false claim to U.S. citizenship to obtain a benefit under the Act. When both grounds of inadmissibility under sections 212(a)(6)(C)(i) and (ii) apply, the alien should be charged with both grounds and advised of the availability of a waiver (or lack thereof), as appropriate.
This memorandum has the concurrence of Headquarters Office of Field Operations. If there are any additional questions on determining the applicable ground of inadmissibility under section 212(a)(6)(C)(i) or (ii) of the Act, contact Sophia Cox, Adjudications Officer, Headquarters Benefits Division, at 202/514-5014. Questions relating to the employer sanctions implications under section 274A of the Act should be directed to Philip B. Busch, Assistant General Counsel, at 202/514-2895.
1 Section 212(i) of the Act was amended by section 349 of IIRAIRA. Waivers under section 212(i) of the Act are only available to immigrants who are the spouse, son or daughter of a U.S. citizen or lawful permanent resident. Immigrants who are the parents of U.S. citizens or lawful permanent residents no longer qualify. Moreover, the provision under section 212(i) of the Act that allowed the alien to apply for a waiver if more than 10 years had passed since the date the fraud or material misrepresentation occurred has been eliminated. For section 212(i) waiver applications filed before September 30, 1996, but adjudicated on or after that date, the law in effect as of the date of adjudication (not the date of filing) is what governs. For additional guidance on section 212(i) waivers, refer to the guidance issued June 20, 1997 (96 Act #028).