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Did you make a false claim to U.S. Citizenship?

By December 20, 2022Immigration
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A potential false claim to citizenship should not be taken lightly. If an immigration authority discovers that you have made such a claim, the result could be permanent disqualification from most forms of immigration benefits. This type of disqualification is known as becoming inadmissible from entering the United States or from obtaining an immigration benefit. You can view our discussion on inadmissibility here.

A false claim can be made during an interview, or in a document including any written application and can be made to a U.S. immigration official as well as any other federal, state or local official and in some cases to a private person like an employer. You therefore need to be careful and make sure you understand what you are filling out and signing. Many times noncitizens are trapped in a finding of making a false claim to citizenship simply by signing a form such as a driver’s license application where it is inadvertently checked off that the applicant is a U.S. citizen.

In the situation, involving an employer, a false claim documented in the form I-9 which is used by employers to verify and record a prospective employee’s immigration status, this form can be used as evidence of a false claim to citizenship.

To be considered a false claim to citizenship, the claim must have been made on or after September 30, 1996, for any purpose or benefit under immigration law or any federal or state law. If the false claim was made before September 30, 1996, then the noncitizen will not be exposed to the more intense permanent bar from immigration benefits but will be subject to immigration bars based on fraud or willful misrepresentation. In some cases, there may be available a waiver to forgive fraudulent or willful misrepresentations. We discuss waivers available for most inadmissibility issues for immigration benefits for non-permanent statuses here. We also discuss waivers available for inadmissibility issues for green card or permanent statuses here.

Benefits may include, attempting to obtain a U.S. passport, entry into the United States or obtaining employment or any other benefits under federal or state law that requires U.S. citizenship.

An intention to achieve a purpose through a false claim to citizenship may include an intent to avoid a legal consequence such as an intent to avoid removal proceedings, or to avoid scrutiny and inspection by an immigration officer.

Can such a finding of misrepresentation be overcome?

If you made the claim, but can prove that either the representation was not false where perhaps by law you may have been a U.S. citizen although it was not apparent at the time or the false representation was to a representation of U.S. citizenship where the representation was made prior to September 30 , 1996 or the representation was not made for a purpose or benefit under immigration, federal or state law then you can rebut an officer’s determination of such a representation.

You must prove at least one of these rebuttals and the rebuttal must be clear and beyond doubt.

If the claim was made after September 30, 1996 and you can show that each of your parents is or was a U.S. citizen at the time the claim was made; you were permanently residing in the United States prior to reaching the age of 16 and you reasonably believed at the time of the representation that you were a U.S. citizen then you cannot be found to be inadmissible for a false claim to U.S. citizenship.

Although in many cases there may be a waiver available for other misrepresentations, there is no waiver for this type of misrepresentation.

However, one last lifeline is a concept known as Timely Retraction. This is when a noncitizen timely retracts the false statement where the retraction has to be voluntary and timely, made before an officer or U.S. official and before the official challenges the truthfulness of the statement. The retraction is also valid if it is made while an officer is giving the noncitizen a chance to explain or correct the misrepresentation. This will likely work in situations where a noncitizen is in the presence of an officer when the misrepresentation is made. Unfortunately, if the misrepresentation is made in an application, there will be no chance to retract the misrepresentation.

If you think you may have made a false claim to citizenship, it is important to have an experienced immigration officer review the circumstances of the misrepresentation to confirm whether you in fact did make a misrepresentation and to determine if an exception applies or perhaps there was a timely retraction made to save you from being permanently disqualified.

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