UNCLASSIFIED (U)

9 FAM 302.9 

(U) Ineligibility based on Illegal Entry, MISREPRESENTATION and Other Immigration Violations - INA 212(a)(6)

(CT:VISA-1694;   02-06-2023)
(Office of Origin: CA/VO)

9 FAM 302.9-1  (U) Statutory and Regulatory AuthoritY

9 FAM 302.9-1(A)  (U) Immigration and Nationality Act

(CT:VISA-272;   12-20-2016)

(U) INA 101(a)(49) (8 U.S.C. 1101(a)(49)); INA 212(a)(6)(A) (8 U.S.C. 1182(a)(6)(A));  INA 212(a)(6)(B) (8 U.S.C. 1182(a)(6)(B));  INA 212(a)(6)(C) (8 U.S.C. 1182(a)(6)(C)); INA 212(a)(6)(D) (8 U.S.C. 1182(a)(6)(D)); INA 212(a)(6)(E) (8 U.S.C. 1182(a)(6)(E)); INA 212(a)(6)(F) (8 U.S.C. 1182(a)(6)(F)); INA 212(a)(6)(G) (8 U.S.C. 1182(a)(6)(G)); INA 212(d)(3) (8 U.S.C. 1182(d)(3)); INA 212(d)(11) (8 U.S.C. 1182(d)(11)); INA 212(d)(12) (8 U.S.C. 1182(d)(12)); INA 212(i) (8 U.S.C. 1182(i)); INA 214(m) (8 U.S.C. 1184(m)); INA 274A (8 U.S.C. 1324a); INA 274C (8 U.S.C. 1324c).

9 FAM 302.9-1(B)  (U) Code of Federal Regulations

(CT:VISA-272;   12-20-2016)

(U) 22 CFR 40.61; 22 CFR 40.62; 22 CFR 40.63; 22 CFR 40.64; 22 CFR 40.65; 22 CFR 40.66; 22 CFR 40.67.

9 FAM 302.9-2  (U) Present Without Admission or Parole - INA 212(a)(6)(A)

9 FAM 302.9-2(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(A) provides that an individual who is present in the United States without being admitted or paroled, or who arrives in the United States at an undesignated time or place is ineligible.

9 FAM 302.9-2(B)  (U) Application

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(A)(i) does not apply at the time of visa application because it applies only to individuals who are either present or arriving in the United States.

9 FAM 302.9-3  (U) Failure to Attend Removal proceeding - INA 212(a)(6)(B)

9 FAM 302.9-3(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(B) provides that an individual who without reasonable cause failed to attend, or remain in attendance at, a hearing to determine inadmissibility or deportability is ineligible for a visa for five years following their departure or removal from the United States.

9 FAM 302.9-3(B)  (U) Application

9 FAM 302.9-3(B)(1)  (U) Failure to Attend Removal Proceedings

(CT:VISA-1597;   08-02-2022)

a. (U) An individual placed in removal proceedings on or after April 1, 1997, who without reasonable cause, fails or refuses to attend or remain in attendance at proceedings to determine their inadmissibility or deportability is ineligible under INA 212(a)(6)(B) for five years following their departure or removal from the United States.  Reasonable cause is defined as “something that is not within the reasonable control of the individual.”  If you believe that an individual may be ineligible under INA 212(a)(6)(B), then you must inquire into whether they may have had reasonable cause for failing to appear at the removal proceeding.

b. (U) Federal courts or the Board of Immigration Appeals have found that the following were not “reasonable causes” for failing to attend removal proceedings:

(1)  (U) Filing a motion for change of venue or for a continuance (prior to the court granting the motion);

(2)  (U) Failure to inform the government of the individual's correct address, or of a change of address;

(3)  (U) Misplacing a hearing notice;

(4)  (U) Failure to receive a notice of the hearing that was served or mailed in accordance with procedural requirements.

(5)  (U) The notice to appear at the removal hearing was not in the individual's native language.

(6)  (U) Failure to receive notification from one’s attorney or other agent about the date of a hearing.

(7)  (U) Claiming ineffective assistance of counsel (such as receiving advice from an attorney not to attend the hearing) without complying with the requirements of such a claim (e.g., filing a motion to reopen the proceedings claiming ineffective assistance, etc.);

(8)  (U) Following advice from a non-lawyer (such as a “notario,” relative, or a travel agency) not to attend a hearing for which the individual has received notice.

(9)  (U) Fear that the hearing will result in the individual's deportation or removal from the United States.

(10) (U) Heavy traffic.

(11) (U) Pregnancy.

(12) (U) The need to care for one’s children.

(13) (U) Familial difficulties.

c.  (U) The following circumstances, in some cases, may be considered a “reasonable cause” for failing to attend or remain in attendance at removal proceedings, if the individual can provide sufficient and credible corroborating evidence of the circumstance:

(1)  (U) Serious illness.

(2)  (U) While on the way to a hearing, there is a mechanical breakdown of an automobile leaving the individual stranded and unable to arrive on time to the hearing.

(3)  (U) The individual alleges that ineffective assistance of counsel was the cause of the individual's failure to appear at the hearing, and the individual has fulfilled the requirements of making such a claim (e.g. filing a motion to reopen the proceedings claiming ineffective assistance, and the motion is supported by a detailed affidavit; filing a complaint with the appropriate disciplinary authorities governing the attorney; etc.), as set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).

(4)  (U) The individual demonstrates that they were in Federal or State custody and the failure to appear was through no fault of the individual.

d. (U) There is no minimum age limit but the younger a child is when ordered removed in absentia, the more likely that their failure to attend the removal proceeding may be considered as not having been “within reasonable control of the individual,”  particularly when they were younger than 14 years of age.  The Board of Immigration Appeals has held that service of a notice to appear on a minor who is 14 years of age or older at the time of service is effective and is not a basis for reopening the individual’s removal proceedings, even if the notice was never served on an adult with responsibility for the minor.  Matter of Hilmer Leonel Cubor-Cruz, 25 I. & N. Dec. 470 (B.I.A. 2011).

9 FAM 302.9-3(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020)

(U) An AO is not required for a potential INA 212(a)(6)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, such as what constitutes "reasonable cause," you may request an AO from L/CA. As with other grounds that do not require a formal AO, the AO may be informal.  See 9 FAM 304.3-1.

9 FAM 302.9-3(D)  (U) Waivers

9 FAM 302.9-3(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1597;   08-02-2022)

(U) The INA does not provide a waiver of INA 212(a)(6)(B) for IV applicants.

9 FAM 302.9-3(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1358;   09-10-2021)

(U) You may, in your discretion, recommend that DHS grant a waiver under INA 212(d)(3)(A) for an individual who is ineligible  under INA 212(a)(6)(B) provided they meet the criteria specified in 9 FAM 305.4-3(B) and you have considered the factors in 9 FAM 305.4-3(C).

9 FAM 302.9-3(E)  Unavailable

9 FAM 302.9-3(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-3(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-4  (U) Misrepresentation - INA 212(a)(6)(c)(i)

9 FAM 302.9-4(A)  (U) Grounds

(CT:VISA-543;   03-27-2018)

(U) INA 212(a)(6)(C)(i) provides that "any alien who by fraud or willfully misrepresenting a material fact seeks to procure (or sought to procure or has procured) a visa, other documentation, or admission into the United States or some other benefit provided under" the INA is ineligible.

9 FAM 302.9-4(B)  (U) Application

9 FAM 302.9-4(B)(1)  (U) Criteria for Finding

(CT:VISA-1358;   09-10-2021)

a. (U) To find an individual ineligible under INA 212(a)(6)(C)(i), you must determine that the following four elements have been satisfied:

(1)  (U) There has been an affirmative act of misrepresentation made by the applicant (see 9 FAM 302.9-4(B)(3));

(2)  (U) The misrepresentation was willfully made (see 9 FAM 302.9-4(B)(4));

(3)  (U) The fact misrepresented is material (see 9 FAM 302.9-4(B)(5); and

(4)  (U) The applicant by using fraud or misrepresentation (see 9 FAM 302.9-4(B)(2) below) seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States (see 9 FAM 302.9-4(B)(7) paragraph a), or other benefit provided under the INA (see 9 FAM 302.9-4(B)(7) paragraph b).

b. Unavailable.

(1)  Unavailable.

(2)  Unavailable.

(3)  Unavailable.

(4   Unavailable.

(5)  Unavailable.

9 FAM 302.9-4(B)(2)  (U) Different Standards for Finding of Fraud or Willfully Misrepresenting a Material Fact

(CT:VISA-1597;   08-02-2022)

a. (U) The text of INA 212(a)(6)(C)(i) refers to both "fraud" and "willfully misrepresenting a material fact," which are two distinct things.  The Board of Immigration Appeals determined that "fraud" typically means that the individual made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer.  Further, the representation must have been believed and acted upon by a consular officer or other U.S. official (see Matter of G, 7 I. & N. Dec. 161 (BIA 1956)).  On the other hand, a "willful misrepresentation" does not require either an intent to deceive or that the officer either believes or acted upon the false representation.  See Matter of S and B-C, 9 I. & N. Dec. 436, 448-449 (A.G. 1961 and Matter of Kai Hing Hui, 15 I. & N. Dec. 288 (BIA 1975).

b. (U) Most cases of INA 212(a)(6)(C)(i) ineligibility involve "material misrepresentations" rather than "fraud" since determining that an individual had the intent to deceive an officer and that the fraud was believed and acted upon is a higher legal standard.  Therefore, this section deals principally with the interpretation of "material misrepresentation.”

9 FAM 302.9-4(B)(3)  (U) Interpretation of the Term Misrepresentation

(CT:VISA-1597;   08-02-2022)

a. (U) "Misrepresentation" Defined:  As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts.  Misrepresentation requires an affirmative act taken by the individual.  A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.

b. (U) Differentiation Between Misrepresentation and Failure to Volunteer Information:  In determining whether a misrepresentation has been made, it is necessary to distinguish between misrepresentation of information and information that was merely concealed by the individual's silence.  Silence or the failure to volunteer information does not in itself constitute a misrepresentation under INA 212(a)(6)(C)(i).

c.  (U) Misrepresentation Must Have Been Before a U.S. Official:  For a misrepresentation to fall within the purview of INA 212(a)(6)(C)(i), it must have been made to an official of the U.S. Government; the official will normally be a consular officer or a Department of Homeland Security (DHS) officer. 

d. (U) Misrepresentation Must be Made on Individual's Own Application:  The misrepresentation must have been made by the individual with respect to their own visa application or application for admission to the United States, including any information provided in support of the application.  Misrepresentations made in connection with some other person's visa application or application for admission to the United States do not fall within the purview of INA 212(a)(6)(C)(i) but may be considered regarding the possible application of INA 212(a)(6)(E). 

e. (U) Misrepresentation Made by Applicant's Agent or Attorney:  The fact that an applicant pursues a visa application through an attorney or other third party does not serve to insulate them from liability for misrepresentations made by such agents, if you find that the individual was aware of the action being taken in furtherance of the application.  This standard would apply, for example, where a travel agent executed a visa application on an applicant's behalf.  Similarly, an oral misrepresentation made by another person on behalf of an individual at the time of application for admission to the United States does not shield them from ineligibility under INA 212(a)(6)(C)(i), if you find that they were aware at the time of the misrepresentation made on their behalf.

f.  (U) Timely Retraction:

(1)  (U) In General:  A retraction that is timely and voluntary may serve to purge a misrepresentation and remove it from further consideration as a ground for the INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) ineligibilities.  Whether a retraction is timely depends on the circumstances of the case.  Generally, a retraction is timely if it is made at the first opportunity and before the conclusion of the same proceeding during which an individual made the misrepresentation.  A determination of whether a retraction is timely is made on a case-by-case basis.  If the applicant has personally appeared and been interviewed, the retraction must have been made during the initial interview with the officer.  If the misrepresentation has been noted in a visa application that was not submitted in person by the applicant, the applicant must be called in for a personal interview and the retraction must be voluntarily made during that interview.  In all cases in which you become aware that the applicant made a misrepresentation that might be material, you should warn the applicant of a potential ineligibility under INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) and confront the applicant with the misrepresentation.  The applicant must correct their representation before being exposed by the U.S. Government official and before the conclusion of the proceeding during which they made the false statement.  A retraction can be found to be voluntary and timely if it was made in response to an officer’s questions during which the officer gave the applicant a chance to explain or correct a potential misrepresentation.

(2)  (U) Specific Examples:  A retraction made before primary inspection by a DHS officer at a port of entry may be timely, depending on the nature, circumstances, and timing of the specific retraction.  Generally, retractions in secondary inspection based on a misrepresentation in or before primary inspection at a port of entry would not be considered timely.  Willful material misrepresentations made as part of a petition filing (such as signing a fraudulent marriage certificate that supports the petition or submitting a fraudulent degree in connection with an employment petition) which are then used either in support of an adjustment of status application filed with USCIS or in an IV application are not timely retracted by the applicant at the time of the adjustment of status or visa application interview.

g. (U) Activities that May Indicate a Possible Violation of Status or Conduct Inconsistent with Status

(1)  (U) In General:

(a)  (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving individuals in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to individuals who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.

(b)  (U) The fact that an individual's subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that their intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States (typically you are looking at activities after entry into the United States), see paragraph (2) below regarding the 90-day rule.

(c)  Unavailable.

(2)  (U) Inconsistent Conduct Within 90 Days of Admission to the United States:

(a)  (U) If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of their true intentions in seeking a visa or admission to the United States).  You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe they are ineligible 6C1.

(b)  (U) Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an applicant’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:

(i)     (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's employment activities when make a 6C1 finding under the 90-day rule.  Additionally, when a noncitizen has been admitted on a nonimmigrant status other than B1/B2 and is engaging in activities consistent with that status (e.g., an F1 nonimmigrant attending a university), engaging in employment that is not authorized incident to status would not be sufficient to justify a presumption of misrepresentation;

(ii)    (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);

(iii)    (U) A nonimmigrant in B status, marrying a United States citizen or LPR and taking up residence in the United States.  To establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, you may consider whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or

(iv)   (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment.  Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90-day rule; the individual must also engage in conduct inconsistent with authorized status without the benefit of such a change of status.

(c) (U) In cases where you are unsure whether an activity is inconsistent with nonimmigrant status or whether a violation occurred, you may request an AO from L/CA. 

(d) (U) A consular manager must review all 6C1 findings of ineligibility under the 90-day rule.

(3)  (U) Inconsistent Conduct After 90 Days:  If an individual violates or engages in conduct inconsistent with their nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises.  If you determine that the applicant misrepresented their purpose of travel at the time of the visa application or application for admission, you should apply a traditional 6C1 analysis.  See 9 FAM 302.9-4(B)(1) above. 

h. (U) Rebuttal Burden is on the Applicant:  The burden of proof falls on the applicant to rebut your finding of a material misrepresentation based on a violation of status/inconsistent conduct within 90 days of admission.  The applicant must establish to your satisfaction that their true intent at the time of the presumptive willful misrepresentation was consistent with their nonimmigrant status.  You must provide the applicant the opportunity to rebut by verbally presenting the applicant with your factual findings. 

(1)  Unavailable.

(2)  (U) If you are satisfied that the applicant did not make a material misrepresentation, and they are otherwise eligible, process the case to conclusion. 

(3)  Unavailable. 

9 FAM 302.9-4(B)(4)  (U) Interpretation of the Term Willfully

(CT:VISA-1358;   09-10-2021) 

a. (U) Willfully Defined:  The term "willfully" as used in INA 212(a)(6)(C)(i) is interpreted to mean knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise.  You must determine that the individual was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement to find the element of willfulness. 

b. (U) Misrepresentation is Individual's Responsibility:  An individual who acts on the advice of another person is exercising the faculty of conscious and deliberate will in accepting or rejecting such advice.  It is no defense for an individual to say that the misrepresentation was made because someone else advised the action unless it is found that the individual lacked the capacity to exercise judgment. 

9 FAM 302.9-4(B)(5)  (U) Interpretation of the Term Material Fact

(CT:VISA-1694;   02-06-2023)

a. (U) Materiality Defined: The Attorney General has declared the definition of "materiality" with respect to INA 212(a)(6)(C)(i) to be as follows:  "A misrepresentation made in connection with an application for a visa or other documents, or with admission to the United States, is material if either:

(1)  (U) The individual is ineligible on the true facts; or

(2)  (U) "[T]he misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he or she be inadmissible."  (Matter of S- and B-C, 9 I. & N. Dec. 436, at 447.)  This is also often referred to as "The Rule of Probability."

(3)  (U) Materiality is determined in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the individual's application for a visa, admission to the United States, or other immigration benefit.

b. (U) Ineligible Under the True Facts (AKA "Independent Ground of Ineligibility"):  The first part of the Attorney General's definition of materiality comprises those cases where the material facts disclose a situation wherein the individual is actually ineligible for a visa as a matter of law.  These are known as independent or objective grounds of ineligibility.  Independent grounds of ineligibility include those encompassed within the provisions of INA 212(a)(1) through (10).  Ineligibility under the true facts may also include situations in which the individual has failed to meet the statutory requirements for the visa as a matter of law but engaged in a misrepresentation that created the appearance that they had satisfied all the requirements.  For example, an applicant for an immigrant visa is required to furnish a record of birth under INA 222(b) and 22 CFR 42.65(b).  An applicant who provides a fake birth certificate in support of an immigrant visa application would fail to meet the statutory requirement for classification and, thus, may be ineligible under the true facts materiality test.  If you find that an applicant’s misrepresentation conceals an ineligibility under grounds other than those within the provisions of INA 212(a)(1) through (10), you may request an AO from L/CA.

(1)  (U) There are grounds of ineligibility that are not permanent, and which might be removed by operation of law.  For example, let us consider the case of an individual who was ineligible under INA 212(a)(9)(B)(i)(I) and more than three years after departing from the United States, made a misrepresentation about their prior unlawful presence in the United States.  They would not be concealing an independent ground of ineligibility because by that point, three years had passed meaning the individual was no longer ineligible under INA 212(a)(9)(B)(i)(I).

(2)  (U) As another example, INA 212(a)(2)(A)(i)(I) has the sentencing clause exception found at INA 212(a)(2)(A)(ii)(II).  An individual who makes a misrepresentation about a criminal conviction for a crime involving moral turpitude but who benefits from the sentencing clause exception would therefore not be ineligible under INA 212(a)(2)(A)(i)(I) and not ineligible under INA 212(a)(6)(C)(i) for concealing an independent ground of ineligibility.

(3)  (U) In judicial and administrative decisions about the applicability of INA 212(a)(6)(C)(i), a distinction has been drawn between the INA 212 ineligibilities which, due to the passage of time, may not be permanent and the other INA 212 ineligibilities which involve some measure of judgment on the part of the consular or immigration officer.  The essence of these decisions, according to the Attorney General, is that:

(a)  (U) The fact in question is material if the determination of relief from the ineligibility depends on an exercise in judgment (i.e., one cannot assume that something is not material on the mere possibility that the exercise of judgment may or may not have erased the ground of ineligibility);

(b)  (U) The fact in question is not material under the independent ground of ineligibility prong of INA 212(a)(6)(C)(i)'s materiality test if the relief from the ineligibility is by the automatic operation of law.

c.  (U) “Rule of Probability” Defined:

(1)  (U) In General:  The second part of the Attorney General's definition refers to a "misrepresentation which tends to shut off a line of inquiry which is relevant to the individual's eligibility, and which might well have resulted in a proper determination that they be inadmissible."  These are cases where the exercise of further consular judgment is required.  Past judicial and administrative decisions concerning this part have evolved into what has become to be known as the "rule of probability."

(2)  (U) “Tends” Defined:  The word "tends" as used in "tended to cut off a line of inquiry" means that the misrepresentation must be of such a nature as to be reasonably expected to foreclose certain information from your knowledge.  It does not mean that the misrepresentation must have been successful in foreclosing further investigation by you to be deemed material; it means only that the misrepresentation must reasonably have had the capacity of foreclosing further investigation.

(a)  (U) If an applicant was found ineligible for a visa under a different and unrelated ground of ineligibility (for example under INA 214(b)) a subsequent discovery that they had misrepresented certain aspects of the case would not be considered material since the misrepresented facts did not tend to lead you into making an erroneous conclusion.  Let us use the example of an applicant for an NIV who made a misrepresentation on the visa application by claiming to have a well-paying job to show that the applicant has a residence abroad, but before the misrepresentation was discovered, the visa was refused because the applicant could not, on the known facts, qualify as a nonimmigrant.  The subsequent discovery that the applicant misrepresented his well-paying job and is in truth unemployed would not support a finding of materiality because it had no bearing on the proper adjudication of the case.

(b)  (U)"The Post Files Exception":  If the truth of the fact being misrepresented is readily available to you through consular systems, or through reference to the post's own files, it cannot be said that the applicant's misrepresentation tended to cut off a line of inquiry since the line of inquiry was readily available to you.  "Readily available" means that you were aware of it at the time of the initial visa interview, so that you were able to engage with the applicant regarding the information. If the information became known after the visa interview, the information was not "readily available" and thus the post files exception would not apply.

(c)  Unavailable.

(3)  (U) Questionable Cases:  Questions sometimes arise concerning the effect on INA 212(a)(6)(C)(i) ineligibility of a false document presented in support of an application, or a false statement made to you, each of which purports to establish a fact which is material to the application for a visa, but which, in the case of the document, is so poorly crafted, or in the case of the statement is so unbelievable as to lack credibility from the time it was first presented.  Even in cases where there is an obvious lack of credibility, if the document or statement is offered to establish a fact which would be material if the information in the document or statement were to be accepted as truthful, you may consider that the document or statement "tends" to cut off a line of inquiry.

(4)  (U) Facts Considered Material:

(a)  (U) Residence and Identity:

(i)     (U) The Board of Immigration Appeals has held that misrepresentations of residence and identity are not automatically material and must be considered as any other misrepresentation.  That means they can be material for purposes of 212(a)(6)(C)(i) if the individual is ineligible on the true facts, or the misrepresentation tends to cut off a relevant line of inquiry which might have led to a proper finding of ineligibility.  (For example, an applicant who is an imposter to a visa, or other document presented to seek admission to the United States or other immigration benefit, would be ineligible under 212(a)(6)(C)(i)).

(ii)    (U) Misrepresentations regarding identity often also involve an independent ground of ineligibility if they involve the use of a false identity in a passport.  INA 212(a)(7)(B) makes ineligible any individual not in possession of a valid passport.  The definition of a passport in INA 101(a)(30) requires that the document show the bearer's "identity."  Therefore, an individual who applies for a visa or for admission to the United States using a passport issued in a false identity to which they have no legitimate claim would not have a valid passport as defined under the INA and would then be ineligible under the independent ground of INA 212(a)(7)(B); and thus, also ineligible under INA 212(a)(6)(C)(i).  This does not apply, however, where the individual uses a nickname, some other reasonable variant of a name, a legally changed name, or any other name for which the individual has some legitimate entitlement.

(iii)    Unavailable.

(iv)   Unavailable.

(b)  (U) Misrepresentations Concerning Previous Visa Applications:

(i)     (U) An IV applicant’s misrepresentation of the fact that the applicant previously applied for or was refused a visa would not be considered material unless the misrepresentation also concealed the existence of an independent ground of ineligibility, or the misrepresentation is now directly relevant to the current visa case.

(ii)    (U) An NIV applicant's misrepresentation of the fact that the applicant was previously refused an NIV under INA 214(b) is not, in itself, a material misrepresentation. Where the misrepresentation, however, conceals not only the fact of the previous refusal, but also objective information not otherwise known or available to you, there may be a basis for finding that the absence of such facts tended to cut off a line of inquiry and thus rendered the misrepresentation material.

(iii)    (U) Electronic System for Travel Authorization (ESTA):  A misrepresentation made in an ESTA application is material if it tends to shut off a line of inquiry that is relevant to the individual’s admissibility or eligibility for an ESTA authorization and would predictably have disclosed other facts relevant to such admissibility or eligibility; or if the individual was ineligible for ESTA under the true facts.

(5)  (U) Application of Phrase “Which Might Have Resulted in a Proper Determination of Exclusion”: As mentioned above, the second part of the Attorney General's definition refers to a "misrepresentation which tends to shut off a line of inquiry which is relevant to the applicant's eligibility and which might well have resulted in a proper determination that they be inadmissible."  To sustain a finding of materiality, it must be shown that the misrepresentation was of basic significance to the applicant's eligibility for a visa.  In other words, the information concealed by the misrepresentation must, when balanced against all the other information of record, have been controlling or crucial to a decision of the applicant's eligibility to receive a visa. 

(6)  (U) The True Facts:

(a)  (U) An applicant will never be ineligible under INA 212(a)(6)(C)(i) if they can demonstrate eligibility on the true facts.  For this reason, an assessment of ineligibility under this ground is not complete until you have considered (to the extent possible) the true facts considering the applicant's misrepresentation. The applicant bears the burden of establishing the true facts and bears the risk that uncertainties caused by their misrepresentation may be resolved against the applicant.  However, if the true facts support a finding that the applicant is eligible for a visa, the misrepresented fact is not material.

(i)     (U) If an individual made a misrepresentation to attempt to qualify for IV status but the applicant was entitled to another equally advantageous IV status, the misrepresentation is not material. 

(ii)    (U) For example, if the son or daughter of a U.S. citizen were to misrepresent marital status as being unmarried to qualify for first preference status, and was, in fact, married and thus qualified for only third preference consideration, and the third preference was currently available for the applicant's state of chargeability, the misrepresentation should not be considered material.  If, however, there were a waiting period for third preference applicants in the state of the applicant's chargeability or world-wide, the applicant must then be found to have committed a willful, material misrepresentation since the applicant was trying to qualify for a more advantageous IV status by committing a misrepresentation.

(b)  (U) Once you find that a misrepresentation was made by an applicant, the burden is on the applicant to establish that the true facts support eligibility for the visa class sought or that, had you known the truth, a visa refusal would not properly have been made.  You should be receptive to any further evidence the applicant may provide to establish qualification for the visa class sought under the true facts.

9 FAM 302.9-4(B)(6)  Unavailable

(CT:VISA-1358;   09-10-2021)

a. Unavailable. 

b. Unavailable.

c. Unavailable. 

9 FAM 302.9-4(B)(7)  (U) Interpretation of the Terms “Other Documentation” and “Other Benefit”

(CT:VISA-1358;   09-10-2021)

a. (U) Other Documentation:  

(1)  (U) The "other documentation" mentioned in the text of INA 212(a)(6)(C)(i) refers to any document relating to an application, admission, grant of deferred action, or any other immigration benefit.  This includes, but is not limited to, such documents as:

(a)  (U) Reentry permits;

(b)  (U) Border crossing identification cards;

(c)  (U) Electronic System for Travel Authorization (ESTA);

(d)  (U) U.S. Coast Guard identity cards; and

(e)  (U) U.S. passports (which also may result in a finding of INA 212(a)(6)(C)(ii).

(f)   (U) Other documents that are issued pursuant to provisions of the INA, such as Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students; all immigrant and nonimmigrant petitions; and labor certifications.  However, the other elements of an ineligibility finding under INA 212(a)(6)(C)(i) may not be present unless and until the individual applies for a visa or seeks a change or adjustment of status.    

b. (U) Other Benefit Provided Under This Act:  The term "other benefit provided under this Act" refers to any immigration benefit listed in the INA, including, but not limited to, requests for extension of stay, change of status, consent to reapply for admission, waivers, employment authorization, advance parole, voluntary departure under INA 240B, and adjustment of status.

c.  (U) Other Forms:  If you determine a visa applicant made a material misrepresentation in an application or request submitted to DHS that is not listed above as “other documentation” and is not another benefit provided under this Act, the individual may still be ineligible for fraud and/or willful misrepresentation of a material fact under the following conditions:

(1)  (U) If the form was submitted in support of an immigration benefit under the INA, such as an employment authorization, or was later used to gain another immigration benefit, such as parole under INA 212(d)(5), including advance parole, then such fraud or material misrepresentation will render the applicant ineligible under INA 212(a)(6)(C)(i).

(2)  (U) If the immigration benefit sought was not granted, you must request an AO from L/CA. See 9 FAM 304.3-2 and 9 FAM 302.9-4(C) below.  In the AO, describe the form submitted to DHS by the visa applicant and the nature of the misrepresentation made.

9 FAM 302.9-4(B)(8)  (U) Additional Information

(CT:VISA-1597;   08-02-2022)

a. (U) Misrepresentations in Family Relationship Petitions:  USCIS retains exclusive authority to deny or revoke family-relationship IV petitions.  Thus, a misrepresentation with respect to entitlement to the classification based on the relationship, e.g., a sham marriage in an IR-1 case, cannot be deemed material if the petition remains valid.  Upon discovery of a misrepresentation, you must return the petition to the appropriate USCIS office via the National Visa Center.  If the petition is revoked, the materiality of the misrepresentation is established. In some cases, the relationship and petition may still be valid, but the individual may misrepresent eligibility for the classification in a different way that is not relevant to the petition's validity, in those cases, you retain the authority to make an INA 212(a)(6)(C)(i) determination.

b. (U) DS-160 Question on a Visa Petition Being Filed on Your Behalf:  The Form DS-160 asks “Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services?”   An applicant who is the principal beneficiary (i.e., the individual for whom the petition was filed), such as the family member in a Form I-130 petition or the intended employee in a Form I-140 petition, who answers "no" to this question should generally be considered to have made a misrepresentation.  Similarly, an applicant who has self-petitioned (i.e., filed an immigrant petition on their own behalf), such as an individual of extraordinary ability or self-petitioning special immigrant, who answered the question "no" should generally be considered to have made a misrepresentation.  In either case (whether as a beneficiary or self-petitioner), you must still determine whether such a misrepresentation was willfully made and whether it was material per 9 FAM 302.9-4(B)(1) above.  For example, an applicant who credibly claimed that she was unaware that her brother filed a fourth preference family petition 10 years ago may have made a misrepresentation (i.e., it was a statement not in accordance with the truth), but it would not be considered a willful misrepresentation.  An applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering "no" to this question.

c.  (U) Attempts to Obtain Visa by Bribery:  An attempt by an applicant to obtain a visa or admission to the United States through bribery of a U.S. Government employee is an attempt to perpetrate fraud on the U.S. Government and will result in ineligibility under INA 212(a)(6)(C)(i) due to fraud.  The bribe must be directed to a consular officer, a member of post’s Locally Employed Staff, or an immigration officer.  Ordinarily, no AO is required, but posts should report the circumstances of all such cases to the appropriate Departmental offices; e.g., L/CA, the Office of Fraud Prevention Programs (CA/FPP), and the Visa Fraud Branch (DS/CR/CFI). 

9 FAM 302.9-4(C)  (U) Advisory Opinions

9 FAM 302.9-4(C)(1)  (U) AO Required

(CT:VISA-1358;   09-10-2021)

(U) You are only required to submit an AO for a 6C1 finding where the FAM specifically states that an AO is required. An AO is required in the following cases and must be submitted formally (unless the FAM specifies that the AO may be submitted informally via email to L/CA):

(1)  (U) Where the applicant presented fraudulent documentation related to establishing qualification for a visa classification, but such documentation is not normally required to qualify for such visa classification (e.g., if an applicant presents a false bank statement or employment letter which are not strictly required to qualify for a B visa, then post would need to submit an AO);  

(2)  (U) Where you find the applicant has a legitimate claim to an alternate identity used (except you do not need to submit an AO if the alternate identity involved use of a maiden name, a nickname, or a legal and well-documented name change); and

(3)  (U) Where you believe that the applicant made a misrepresentation related to some benefit under the INA other than seeking a visa or admission at a port of entry.

9 FAM 302.9-4(C)(2)  Unavailable

(CT:VISA-1358;   09-10-2021)

Unavailable.

(1)  Unavailable.

(a)  Unavailable.

(b)  Unavailable.

(c)  Unavailable.

(d)  Unavailable.

(2)  Unavailable.

(3)  Unavailable.

(a)  Unavailable.

(b)  Unavailable.

9 FAM 302.9-4(D)  (U) Waivers

9 FAM 302.9-4(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1597;   08-02-2022)

a. (U) An applicant for an IV who is ineligible under provision (i) of INA 212(a)(6)(C) in general may seek a waiver from DHS under INA 212(i) if:

(1)  (U) The applicant is the spouse, son, or daughter of a U.S. citizen or a lawful resident; and

(2)  (U) The Secretary of Homeland Security is satisfied that the refusal of the applicant’s admission to the United States would result in extreme hardship to the U.S. citizen or lawful resident spouse or parent of such applicant.

b. (U) Any questions about submitting an IV waiver should be referred to DHS.

9 FAM 302.9-4(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1358;   09-10-2021)

(U) You may, in your discretion, recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible under INA 212(a)(6)(C)(i) provided the applicant meets the criteria specified in 9 FAM 305.4-3(B).

9 FAM 302.9-4(E)  Unavailable

9 FAM 302.9-4(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-4(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-5  (U) Falsely Claiming Citizenship - INA 212(a)(6)(C)(ii)

9 FAM 302.9-5(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(C)(ii) renders ineligible any individual who, after September 30, 1996, falsely claimed U.S. citizenship to obtain a U.S. passport, entry into the United States, or any other benefit under any U.S. State or Federal law.  According to the BIA, "a false claim to United States citizenship falls within the scope of INA 212(a)(6)(C)(ii)(I) where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the (INA) or any other Federal or State law, and where United States citizenship actually affects or matters to the purpose or benefit sought."  Matter of Richmond, 26 I&N Dec. 779 (BIA 2016).

9 FAM 302.9-5(B)  (U) Application

9 FAM 302.9-5(B)(1)  (U) In General

(CT:VISA-1597;   08-02-2022)

a. (U) An assertion by a visa applicant that a false claim to citizenship was made by a third party on the applicant’s behalf does not serve to insulate the applicant from liability for misrepresentations, if you find that they were aware of the action being taken to support their application.  This standard would apply, for example, where an oral misrepresentation is made by another person on behalf of an applicant at the time of application for admission to the United States; the applicant would not be shielded from ineligibility under INA 212(a)(6)(C)(ii), if you find that the applicant was aware at the time of the misrepresentation made on their behalf.

b. (U) There is a difference between making a false claim to U.S. citizenship and simply failing to volunteer information.  In determining whether a false claim has been made, it is necessary to distinguish between a false claim to U.S. citizenship and information that was merely concealed by the applicant's silence.  Silence or the failure to volunteer information does not in itself constitute a false claim to citizenship under INA 212(a)(6)(C)(ii).

c.  (U) On December 6, 2014, the DHS Office of the General Counsel issued an opinion concluding that:

(1)  (U) Only a knowingly false claim can support a charge that an individual is ineligible under INA 212(a)(6)(C)(ii)The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (“clearly and beyond doubt”).

(2)  (U) A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship.  The individual must establish this claim by the appropriate standard of proof (“clearly and beyond doubt”).

d. (U) An applicant who has been refused under INA 212(a)(6)(C)(ii) in the past and believes that their case meets the requirements above may follow standard post application procedures for submitting a new visa application.

e. Unavailable.

f.  Unavailable. 

(1) Unavailable.

(2)  Unavailable.

(3)  Unavailable.

(4)  Unavailable.

(5)  Unavailable.

(6)  Unavailable.

(7)  Unavailable.

(8)  Unavailable.  

g. Unavailable.

h. Unavailable.

i.  Unavailable.

j.  Unavailable.

9 FAM 302.9-5(B)(2)  (U) Not Retroactive

(CT:VISA-1597;   08-02-2022)

(U) The provisions of INA 212(a)(6)(C)(ii) are not retroactive.  It applies only to individuals who made false claims to U.S. citizenship on or after September 30, 1996.  An individual who attempted or achieved entry to the United States before September 30, 1996, with a false claim of U.S. citizenship is not ineligible under the terms of INA 212(a)(6)(C)(ii).  They are, however, ineligible under 212(a)(6)(C)(i), provided such claim was made to procure a visa, other documentation, admission into the United States, or other benefit under INA.  This is a significant difference because the IV waiver provisions relating to INA 212(a)(6)(C)(i) and INA 212(a)(6)(C)(ii) are not the same.

9 FAM 302.9-5(B)(3)  (U) Applies to Any Benefit Under Any U.S. Federal or State Law

(CT:VISA-1358;   09-10-2021)

(U) A major difference between INA 212(a)(6)(C)(ii) and INA 212(a)(6)(C)(i) is that 212(a)(6)(C)(ii) applies to false claims to U.S. citizenship "for any purpose or benefit" under Federal or State law, while 212(a)(6)(C)(i) is limited to fraud or misrepresentation in trying to procure a benefit under the INA.  Like INA 212(a)(6)(C)(i), INA 212(a)(6)(C)(ii) applies to an individual who makes false claims to U.S. citizenship to obtain:

(1)  (U) A U.S. passport;

(2)  (U) Entry into the United States; or

(3)  (U) Other documentation or benefit under the INA (provided such claim was made before a U.S. Government official).

(a)  (U) For example, an individual who made a false claim to U.S. citizenship to obtain a government benefit or to vote in a Federal or State election would be ineligible under INA 212(a)(6)(C)(ii)See also 9 FAM 302.12-5 regarding unlawful voters.  A false claim to citizenship to avoid removal proceedings would also qualify as a "purpose" under U.S. law.

(b)  (U) In another example, if an individual used the identity of an LPR or otherwise claimed to be an LPR to gain employment in the USA, that individual would not be subject to INA 212(a)(6)(C)(ii.) However, if an individual used the identity of or otherwise claimed to be a U.S. citizen to gain employment in the USA, that would constitute an INA 212(a)(6)(C)(ii) ineligibility, per 9 FAM 302.9-5(B)(4) below. 

9 FAM 302.9-5(B)(4)  (U) False Claims to U.S. Citizenship and Working in the United States

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(C)(ii) also applies to INA 274A, which makes it unlawful to hire an individual who is not authorized to work in the United States.  Thus, an individual who makes a false claim to U.S. citizenship to secure employment in violation of INA 274A would be ineligible under INA 212(a)(6)(C)(ii).

9 FAM 302.9-5(B)(5)  (U) Citizenship Claims Made to Other Than U.S. Government Officials

(CT:VISA-543;   03-27-2018)

(U) INA 212(a)(6)(C)(ii) does not require that the false claim to U.S. citizenship be made to a U.S. official.  INA 212(a)(6)(C)(ii) specifically says "under this Act (including section 274A) or other Federal or State law."  Thus, the false claim may have been made to a State or Federal Government official outside the Department of State or DHS, a prospective employer to circumvent INA 274A, or any other relevant person in the effort to obtain a benefit under U.S. Federal or State law.  

9 FAM 302.9-5(B)(6)  (U) Exception

(CT:VISA-1597;   08-02-2022)

(U) The Child Citizenship Act of 2000 (section 201(b) of Public Law 106-395) added an exception for ineligibility under INA 212(a)(6)(C)(ii) for an individual who falsely claimed citizenship if:

(1)  (U) Each parent is or was a U.S. citizen by birth or naturalization;

(2)  (U) The individual resided permanently in the United States before the age of 16; and

(3)  (U) The individual reasonably believed at the time of such violation that they were a U.S. citizen.

9 FAM 302.9-5(C)  Unavilable

(CT:VISA-1150;   09-14-2020) 

Unavailable.

9 FAM 302.9-5(D)  (U) Waivers

9 FAM 302.9-5(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1597;   08-02-2022)

(U) There is no IV waiver available under the law for an applicant who is ineligible under INA 212(a)(6)(C)(ii). 

9 FAM 302.9-5(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1358;   09-10-2021)

(U) You may, at your discretion, recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible under INA 212(a)(6)(C)(ii) provided the applicant meets the criteria specified in 9 FAM 305.4-3(H).

9 FAM 302.9-5(E)  Unavailable

9 FAM 302.9-5(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-5(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-6  (U) Stowaways - INA 212(a)(6)(D)

9 FAM 302.9-6(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(D) provides that any individual who is a stowaway is ineligible. 

9 FAM 302.9-6(B)  (U) Application

9 FAM 302.9-6(B)(1)  (U) Defining “Stowaway”

(CT:VISA-1358;   09-10-2021)

(U) INA 101(a)(49) defines "stowaway" as "…any individual who obtains transportation without the consent of the owner, charterer, master, or person in command of any vessel or aircraft through concealment aboard such vessel or aircraft.  A passenger who boards with a valid ticket is not to be considered a stowaway."

9 FAM 302.9-6(B)(2)  (U) Applying INA 212(a)(6)(D)

(CT:VISA-74;   03-03-2016)

(U) The fact that a person may have been a stowaway in the past does not in itself make the person ineligible to receive a visa.

9 FAM 302.9-6(C)  (U) Not Applicable at the time of Visa Application

(CT:VISA-1358;   09-10-2021)  

(U) INA 212(a)(6)(D) is not applicable at the time of visa application because it applies only to individuals arriving in the United States as stowaways.

9 FAM 302.9-6(D)  (U) Waiver

9 FAM 302.9-6(D)(1)  (U) Waivers for Immigrants

(CT:VISA-272;   12-20-2016) 

(U) INA 212(a)(6)(D) is not applicable at the time of visa application.

9 FAM 302.9-6(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-272;   12-20-2016)

(U) INA 212(a)(6)(D) is not applicable at the time of visa application.

9 FAM 302.9-7  (U) "Smugglers" or INDIVIDUALS Assisting others  to enter the uSA in Violation of Law - INA 212(a)(6)(E)

9 FAM 302.9-7(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(E) provides that “any individual” who “at any time”...”knowingly”... has “encouraged, induced, assisted, abetted or aided”...“any other individual”...“to enter or to try to enter the United States” in violation of law is ineligible for a visa and inadmissible to the United States.

9 FAM 302.9-7(B)  (U) Application

9 FAM 302.9-7(B)(1)  (U) Defining “Any Alien”

(CT:VISA-1597;   08-02-2022)

(U) All individuals, including LPRs seeking reentry into the United States, are potentially subject to this provision.  However, the Secretary of Homeland Security may waive ineligibility (see 9 FAM 302.9-7(D) below) for:

(1)  (U) An IV applicant where the applicant sought to assist only an individual who was his spouse, child, or parent at the time of the assistance, or

(2)  (U) An LPR who is returning to the United States under the conditions found in INA 211(b), i.e., one who returns under circumstances not requiring a returning resident visa (within one year without a reentry permit, or within a maximum of two years with a reentry permit).

(3)  (U) If an individual has a question regarding IV waivers or waivers for LPRs, they should be directed to contact DHS directly. 

9 FAM 302.9-7(B)(2)  (U) Visa Ineligibility Applied Retroactively

(CT:VISA-1597;   08-02-2022)

(U) The conduct which is proscribed under this section may have occurred at any time in the past.  Therefore, there will be cases in which an individual who was previously not ineligible under INA 212(a)(6)(E)(including before June 1, 1991) may currently be ineligible for a visa for the same conduct.   

9 FAM 302.9-7(B)(3)  (U) Individual Must Act “Knowingly”

(CT:VISA-1358;   09-10-2021)

(U) A key element of INA 212(a)(6)(E) is that the “smuggler” (e.g., an individual who is attempting to assist or is assisting another individual) must act “knowingly” to encourage, induce, or assist an individual to enter the United States in violation of law.  In other words, to find an applicant ineligible under this provision, you must find that the “smuggler” is or was aware of sufficient facts such that a reasonable person in the same circumstances would conclude that their encouragement, inducement, or assistance could result in the entry of the individual into the United States in violation of law. Further, the “smuggler” must act with intention of encouraging, inducing, or assisting the individual to achieve the entry in violation of law. 

9 FAM 302.9-7(B)(4)  (U) “Encourage, Induce, Assist, Abet, or Aid”

(CT:VISA-1597;   08-02-2022)

a. (U) The actions for which a “smuggler” might be found ineligible are numerous.  The acts generally involve an "affirmative act of assistance," that is, an act or acts that are of direct encouragement, inducement, or assistance to the individual's attempted entry in violation of law. Some examples include but are not limited to:

(1)  (U) Before the individual's entry into the United States, offering an individual a job under circumstances where it is clear that the individual will not enter the United States legally to accept the employment, or

(2)  (U) Physically bringing an individual into the United States in violation of law.

(3)  (U) Aiding an individual in any way to arrange for entry into the United States in violation of law.

b. (U) Visa Application and Applications for Admission at Ports of Entry: INA 212(a)(6)(E) relates to assisting a noncitizen to enter the United States “in violation of law."  An individual making a visa application who either knowingly makes false oral or written statements or knowingly provides fraudulent documents on behalf of any visa applicant, including a family member, it would only be considered an attempted entry in violation of law if the misrepresentation meets the standards for an INA 212(a)(6)(C)(i) finding (see 9 FAM 302.9-4 for more information), including the requirement that the false statement was material under the INA 212(a)(6)(C)(i) (see 9 FAM 302.9-4(B)(5)).

9 FAM 302.9-7(B)(5)  (U) “Any Other Alien" Effect of Revision on Family Related Smuggling

(CT:VISA-1358;   09-10-2021)

(U) Encouraging, inducing, or assisting any other individual, even close family members, to enter the United States illegally can result in ineligibility under INA 212(a)(6)(E).  The previous version of this law (INA 212(a)(31)) which was interpreted to exclude actions on behalf of close family members where the sole motive for the actions was family affection and not financial or other “gain.”

9 FAM 302.9-7(C)  Unavailable

(CT:VISA-1358;   09-10-2021)

Unavailable. 

9 FAM 302.9-7(D)  (U) Waivers

9 FAM 302.9-7(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1597;   08-02-2022)

a. (U) With respect to an immigrant, pursuant to INA 212(d)(11), the Secretary of Homeland Security may, in their discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive visa ineligibility under INA 212(a)(6)(E) if the individual has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the individual’s spouse, parent, son, or daughter.  DHS has advised that a waiver under INA 212(d)(11) is only available to IV applicants in the following categories:  

(1)  (U) Immediate relatives (IR categories);

(2)  (U) Unmarried sons and daughters of U.S. citizens;

(3)  (U) Spouses and unmarried sons and daughters of LPRs; and

(4)  (U) Married sons and daughters of U.S. citizens.

b. (U) The Secretary of Homeland Security may also waive inadmissibility for an LPR who has sought to assist only his spouse, parent, son, or daughter and who is returning to the United States under the conditions found in INA 211(b), i.e., one who returns under circumstances not requiring a returning resident visa (within one year without a reentry permit, or within a maximum of two years with a reentry permit).  

c.  (U) Because a waiver is only available where the individual has encouraged, induced, assisted, abetted, or aided an individual who at the time of such action was the individual's spouse, parent, son, or daughter, you must make specific factual findings to include the date of the smuggling act and the relationship, if known, to the individual(s) smuggled.  You should document these findings in the case notes.

d. (U) If the applicant has any questions about submitting an IV waiver, they should be directed to contact DHS.

9 FAM 302.9-7(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1358;   09-10-2021)

(U) You may, in your discretion, recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible under INA 212(a)(6)(E) provided they meet the criteria specified in 9 FAM 305.4-3(H).

9 FAM 302.9-7(E)  Unavailable

9 FAM 302.9-7(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-7(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-8  (U) Subject to Civil Penalty - INA 212(a)(6)(F)

9 FAM 302.9-8(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(F) renders excludable any individual who is the subject of a final order under INA 274C, rendered by an administrative law judge or by a court, for immigration related document fraud.

9 FAM 302.9-8(B)  (U) Application

9 FAM 302.9-8(B)(1)  (U) Section 274C

(CT:VISA-1358;   09-10-2021)

(U) INA 274C, entitled “Penalties for Document Fraud” provides for civil penalties for persons determined by an administrative law judge to have been involved in virtually any activity regarding forged, altered, or stolen documents for any purpose under the INA. The issuance of a final order under this section in the name of an individual renders the individual ineligible for visa issuance.

9 FAM 302.9-8(B)(2)  (U) Final Order

(CT:VISA-74;   03-03-2016)

(U) An order of the administrative law judge under INA 274C becomes final thirty days after the date of issuance unless the Attorney General modifies or vacates the order within that period. A decision by the Attorney General modifying the original order shall be considered a final order.

9 FAM 302.9-8(B)(3)  (U) Effect of Appeal

(CT:VISA-1358;   09-10-2021)

a. (U) A final order under INA 274C may be appealed to the Court of Appeals within forty-five days of becoming final.  Nevertheless, for visa adjudication, the order must be considered final until such time as it is overturned.

b. (U) It is quite possible, depending upon the facts of the individual case, that an individual who is the subject of a final order under INA 274C might also be ineligible under INA 212(a)(6)(C) - Misrepresentation or INA 212(a)(9)(A) - Certain Individuals Previously Removed or INA 212(a)(6)(E) - Smuggling.

9 FAM 302.9-8(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020) 

(U) An AO is not required for a potential INA 212(a)(6)(F) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA.

9 FAM 302.9-8(D)  (U) Waiver

9 FAM 302.9-8(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1358;   09-10-2021) 

(U) The Attorney General may, in their discretion, grant a waiver for humanitarian purposes to an applicant ineligible to receive a visa under INA 212(a)(6)(F).  The waiver under INA 212(d)(12) may be granted provided:

(1)  (U) The individual is an LPR who temporarily proceeds abroad voluntarily and is otherwise admissible as a returning resident under INA 211(b); or

(2)  (U) The individual is seeking admission under INA 201(b)(2)(A) (as an immediate relative) or 203(a) (as family sponsored immigrant); and

(a)  (U) The offense was solely to assist the applicant’s spouse or child; and

(b)  (U) No previous money penalty was imposed under INA 274C.

9 FAM 302.9-8(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-74;   03-03-2016)

(U) You may, in your discretion, recommend that DHS grant a waiver under INA 212(d)(3)(A) for an applicant ineligible under INA 212(a)(6)(F) provided they meet the criteria specified in 9 FAM 305.4-3(H).

9 FAM 302.9-8(E)  Unavailable

9 FAM 302.9-8(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-8(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-9  (U) Student Visa Abusers - INA 212(a)(6)(G)

9 FAM 302.9-9(A)  (U) Grounds

(CT:VISA-1358;   09-10-2021)

(U) INA 212(a)(6)(G) renders ineligible for five years any student who enters the U.S. to study at a private institution in F-1 status and then switches to a public school in violation of INA 214(m)(2).

9 FAM 302.9-9(B)  (U) Application

9 FAM 302.9-9(B)(1)  (U) In General

(CT:VISA-1358;   09-10-2021)

(U) INA 214(m) prohibits an individual from obtaining F-1 student status to pursue a course of study at a:

(1)  (U) Public elementary school or publicly funded adult education program; and

(2)  (U) Public secondary school, unless the:

(a)  (U) Aggregate period of study at such school does not exceed 12 months; and

(b)  (U) The individual demonstrates reimbursement of the full, unsubsidized per capital cost of the education.

9 FAM 302.9-9(B)(2)  (U) Date of Applicability

(CT:VISA-1358;   09-10-2021)

(U) The provisions of INA 212(a)(6)(G) affect only individuals who received F-1 status after November 30, 1996, or individuals whose status was extended on or after that date.  It does not apply to individuals attending public schools or programs while in other nonimmigrant status (e.g., F-2, E, H-4, J, or B-2—even out-of-status B-2).

9 FAM 302.9-9(B)(3)  (U) Definitions

(CT:VISA-1358;   09-10-2021)

a. (U) Defining "Elementary":  Under INA 214(m), the term "elementary" means grades kindergarten through eight. 

b. (U) Defining "Secondary":  Under of INA 214(m), the term "secondary" means grades nine through twelve.

c.  (U) Defining "Public":  A public school is any school that receives more than half of its financing through State or local taxes or through Federal grants.  The definition of "public" can encompass "alternative" or "charter" schools that allow parents to exercise extensive control over curriculum.  It can also encompass the term "corporate charter school"—applied to schools that have received major grants and land, buildings, or educational materials from a corporation providing major employment opportunities in the local area, unless it can be established that the value of the grant on an ongoing annual basis exceeds the value of financing from public taxes and grants. 

d. (U) Defining "Publicly Funded Adult Education":  The Department of Homeland Security/U.S. Citizenship and Immigration Service (DHS/USCIS) defines "publicly-funded adult education" as programs run tuition-free at or in conjunction with public secondary schools.  It does not apply to schools such as community colleges that receive public funds but charge students tuition. 

9 FAM 302.9-9(B)(4)  (U) Participation in Language Programs

(CT:VISA-1358;   09-10-2021)

(U) The provisions of INA 214(m) prohibit an individual's participation in any publicly funded language program.

9 FAM 302.9-9(B)(5)  (U) Transferring Schools

(CT:VISA-1358;   09-10-2021)

(U) An individual may transfer from public to private secondary school only if they reimburse the school as indicated in 9 FAM 302.9-9(B)(8) below and do not exceed the one-year time limitation.  Non-adherence to these requirements automatically voids the individual's visa and renders the individual subject to INA 212(a)(6)(G) as a student abuser.

9 FAM 302.9-9(B)(6)  (U) Penalty for Violation of INA 214(m)

(CT:VISA-1597;   08-02-2022)

a. (U) An individual who violates the provisions of INA 214(m) becomes ineligible under INA 212(a)(6)(G) and must remain outside the United States for a continuous period of five years before qualifying for another NIV.

b. (U) An individual who transfers from private to public school has, under INA 101(a)(15)(F), violated their status unless the student has reimbursed the school as noted in 9 FAM 302.9-9(B)(8) below.

9 FAM 302.9-9(B)(7)  (U) Determining Whether School is Public or Private

(CT:VISA-74;   03-03-2016)

(U) The responsibility for documenting whether the school meets the definition of "public" rests with the applicant.  For example, a letter from a responsible official from the public school district could resolve doubts as to whether a "corporate charter school" is private.

9 FAM 302.9-9(B)(8)  (U) Determining Compliance with Financial Reimbursement Requirement

(CT:VISA-1597;   08-02-2022)

a. (U) In General:  The school is responsible for determining what amount constitutes the "unsubsidized per capita cost of education", the school's estimate of their per student expenditure of public revenues (Federal, State, and local).  This figure is not necessarily the school's nonresident tuition.  You should not inquire into the calculation.  However, you should not accept estimates that are unrealistically low.  In such cases, you should request additional information from the school district.  You must refer cases that appear to be deliberate attempts to circumvent the law to the Office of Field Operations (CA/VO/F). 

b. (U) Evidence of Financial Reimbursement:  The public school authority must actually collect the student's reimbursement before a visa can be issued.  DHS/USCIS has instructed its ports of entry (POE) that, if the public-school reimbursement is not entered on the student's Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, with a notarized signature, the student must provide a notarized statement on school district letterhead.  A school district official (usually the superintendent or someone designated by them) must sign the statement that reimbursement has been made.  To avoid complications at the POE, visa applicants should provide the same evidence to qualify for an F-1 visa. 

c.  (U) Lack of Evidence of Financial Reimbursement:  You must refuse an applicant who cannot present evidence of financial reimbursement under INA 221(g).  You should advise the applicant to arrange reimbursement directly with the school authority and return with proof of payment. 

9 FAM 302.9-9(B)(9)  (U) Twelve-Month Limit on School Attendance

(CT:VISA-1597;   08-02-2022)

(U) INA 214(m) places a 12-month limit on attendance at public secondary schools while in F-1 status.  Attendance at a secondary public school, while in a status other than F-1, while in unlawful status, or before November 30, 1996, does not count against the 12-month limit.  You must not issue an F-1 visa if the proposed length of study would exceed the 12-month limit.

9 FAM 302.9-9(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020) 

(U) An AO is not required for a potential INA 212(a)(6)(G) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA.

9 FAM 302.9-9(D)  (U) Waiver

9 FAM 302.9-9(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1597;   08-02-2022)  

(U) No waiver is available for IV applicants found ineligible under INA 212 (a)(6)(G).   

9 FAM 302.9-9(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1358;   09-10-2021)

(U) You may, in your discretion, recommend that DHS grant a waiver under INA 212(d)(3)(A) for a nonimmigrant ineligible under INA 212(a)(6)(G) provided the applicant meets the criteria specified in 9 FAM 305.4-3(H).

9 FAM 302.9-9(E)  Unavailable

9 FAM 302.9-9(E)(1)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

9 FAM 302.9-9(E)(2)  Unavailable

(CT:VISA-272;   12-20-2016)

Unavailable.

UNCLASSIFIED (U)