N-400 Denied - Misrepresentation of information in DS-160 F1 Visa

[tl2912]

My N-400 got denied and I'm checking to see if anyone was in my situation and if you can refer me to a good lawyer.

I got into the U.S. in 2010 under F-1 international student visa. In the application in 2010 and 2012, I checked that I have no other relatives in the U.S., while I have an aunt, uncle, and cousins. A company helped me with the filing and said that those relatives were not relevant. They also put in the form that I filed it myself. I wasn't aware of that and just signed the form.

In 2015, I got married to a US citizen and filed for my green card. In 2018, I filed for the AOS and got no response. In 2020, after 2.5 years of waiting, I filed for citizenship to speed up the process. In 4/2021, I got a combo interview for my green card and citizenship. The interviewer claimed that I misrepresented the information of other relatives and denied my citizenship application due to inadmissibility to the U.S.

I'm so shock because I didn't intent to lie. I got opinions from 3 lawyers. 1 told me to appeal, the other 2 told me to not appeal, wait for the removal proceeding (since my green card will also be revoked), and apply for a waiver with the immigration judge (which is also not easy to be approved). What should I do?

[Lina123]

You don’t have siblings or parents in the US? Just an aunt and cousins? I have not been in situation like that.. it’s so odd.

[Lina123]

Ok, so from the beginning.
you got into the US in 2010? And then in 2012? Went home and married someone and entered again in 2015?
If so, it should have nothing to do with your marriage and GC.

also, relatives is a relative term. If you appeal, which i would do, say you are not close so they are not technically family. If you can make that claim. I think it would be easiest.

if denied - apply for waiver. Main point is not to leave mainland USA. It will be difficult to come back from what I’ve heard. Get a good lawyer.

[SouthBay2019]

My N-400 got denied and I'm checking to see if anyone was in my situation and if you can refer me to a good lawyer.

I got into the U.S. in 2010 under F-1 international student visa. In the application in 2010 and 2012, I checked that I have no other relatives in the U.S., while I have an aunt, uncle, and cousins. A company helped me with the filing and said that those relatives were not relevant. They also put in the form that I filed it myself. I wasn't aware of that and just signed the form.

In 2015, I got married to a US citizen and filed for my green card. In 2018, I filed for the AOS and got no response. In 2020, after 2.5 years of waiting, I filed for citizenship to speed up the process. In 4/2021, I got a combo interview for my green card and citizenship. The interviewer claimed that I misrepresented the information of other relatives and denied my citizenship application due to inadmissibility to the U.S.

I'm so shock because I didn't intent to lie. I got opinions from 3 lawyers. 1 told me to appeal, the other 2 told me to not appeal, wait for the removal proceeding (since my green card will also be revoked), and apply for a waiver with the immigration judge (which is also not easy to be approved). What should I do?

You need to consult with an attorney.

[Lina123]

My N-400 got denied and I'm checking to see if anyone was in my situation and if you can refer me to a good lawyer.

I got into the U.S. in 2010 under F-1 international student visa. In the application in 2010 and 2012, I checked that I have no other relatives in the U.S., while I have an aunt, uncle, and cousins. A company helped me with the filing and said that those relatives were not relevant. They also put in the form that I filed it myself. I wasn't aware of that and just signed the form.

In 2015, I got married to a US citizen and filed for my green card. In 2018, I filed for the AOS and got no response. In 2020, after 2.5 years of waiting, I filed for citizenship to speed up the process. In 4/2021, I got a combo interview for my green card and citizenship. The interviewer claimed that I misrepresented the information of other relatives and denied my citizenship application due to inadmissibility to the U.S.

I'm so shock because I didn't intent to lie. I got opinions from 3 lawyers. 1 told me to appeal, the other 2 told me to not appeal, wait for the removal proceeding (since my green card will also be revoked), and apply for a waiver with the immigration judge (which is also not easy to be approved). Dr. What should I do?

Material, willful misrepresentation or fraud is the second most “popular” grounds for inadmissibility among consular officers — and one of the most complicated areas of immigration law. The consequences for making such a misrepresentation are draconian: a lifetime bar from the United States. This is why consular officers are cautioned to be careful in making such a decision, with such decisions subject to “strict scrutiny” and requiring “substantial evidence” to support them.

In the visa context, this section of the Immigration and Nationality Act, 212(a)(6)(C)(i), requires three elements:

1. The visa applicant made a misrepresentation;
2. The visa applicant made this misrepresentation willfully; and
3. The visa applicant's misrepresentation was material.

A misrepresentation is a statement not in accord with the truth — made by either the visa applicant or his agent on his behalf. It must be a statement or a submitted document; silence is not considered a misrepresentation. So the fact that a tour agency or visa consultant erroneously completed a visa application does not “save” the applicant. Similarly, an applicant who does not know English is not “saved” because he misunderstood a question; the inaccurate information is still considered a misrepresentation.

However, such applicants can attempt to challenge these findings on the basis that they did not willfully make the misrepresentation. A willful statement is made intentionally and deliberately, knowing it is untrue. The test is a subjective one: did this person willfully make a misrepresentation? An accusation that he should have known it was a misrepresentation is not sufficient to make a finding.

Materiality can also be a very tricky determination. In general, the term “material” means a misrepresentation which might have led a consular officer to find a person ineligible for a visa. Some examples in the context of applying for a B visa:

• failing to disclose the existence of a relative in the United States;
• lying that one is married;
• denying that the applicant had previously been in the United States;
• failing to disclose a conviction for a crime of moral turpitude.

However, if the information is readily available to the consular officer by a check in the consular database, then the misrepresentation cannot serve as the basis for a 6C finding. Also, in petition-based cases, a consular officer can make a recommendation to DHS to make a finding of willful, material misrepresentation, but it is up to DHS to make the final determination. Nonaction by DHS on such a recommendation (e.g., the expiration of the validity of the petition) should not serve as the basis for the formal entry of a 6C decision.

[tl2912]

You need to consult with an attorney.

I consulted with several lawyers already and they gave mixed opinions. Apparently my case is unusual.

[tl2912]

Material, willful misrepresentation or fraud is the second most “popular” grounds for inadmissibility among consular officers — and one of the most complicated areas of immigration law. The consequences for making such a misrepresentation are draconian: a lifetime bar from the United States. This is why consular officers are cautioned to be careful in making such a decision, with such decisions subject to “strict scrutiny” and requiring “substantial evidence” to support them.

In the visa context, this section of the Immigration and Nationality Act, 212(a)(6)(C)(i), requires three elements:

1. The visa applicant made a misrepresentation;
2. The visa applicant made this misrepresentation willfully; and
3. The visa applicant's misrepresentation was material.

A misrepresentation is a statement not in accord with the truth — made by either the visa applicant or his agent on his behalf. It must be a statement or a submitted document; silence is not considered a misrepresentation. So the fact that a tour agency or visa consultant erroneously completed a visa application does not “save” the applicant. Similarly, an applicant who does not know English is not “saved” because he misunderstood a question; the inaccurate information is still considered a misrepresentation.

However, such applicants can attempt to challenge these findings on the basis that they did not willfully make the misrepresentation. A willful statement is made intentionally and deliberately, knowing it is untrue. The test is a subjective one: did this person willfully make a misrepresentation? An accusation that he should have known it was a misrepresentation is not sufficient to make a finding.

Materiality can also be a very tricky determination. In general, the term “material” means a misrepresentation which might have led a consular officer to find a person ineligible for a visa. Some examples in the context of applying for a B visa:

• failing to disclose the existence of a relative in the United States;
• lying that one is married;
• denying that the applicant had previously been in the United States;
• failing to disclose a conviction for a crime of moral turpitude.

However, if the information is readily available to the consular officer by a check in the consular database, then the misrepresentation cannot serve as the basis for a 6C finding. Also, in petition-based cases, a consular officer can make a recommendation to DHS to make a finding of willful, material misrepresentation, but it is up to DHS to make the final determination. Nonaction by DHS on such a recommendation (e.g., the expiration of the validity of the petition) should not serve as the basis for the formal entry of a 6C decision.

thanks for the article. Coincidentally I just read up some law about willful misrepresentation on USCIS website before seeing your response.

If my N-400 is denied and I choose to not appeal, my GC will be revoked because of inadmissibility (which means GC should have not been granted at the first place). I entered the US as an F1 student.

[Lina123]

thanks for the article. Coincidentally I just read up some law about willful misrepresentation on USCIS website before seeing your response.

If my N-400 is denied and I choose to not appeal, my GC will be revoked because of inadmissibility (which means GC should have not been granted at the first place). I entered the US as an F1 student.

I’m not an attorney but I would appeal if I were you. They have to be 100% confident that you made a WILLFUL misperception. They have to prove it was willful.

[tl2912]

I’m not an attorney but I would appeal if I were you. They have to be 100% confident that you made a WILLFUL misperception. They have to prove it was willful.

Thanks for your advice! I plan to appeal in “materiality” and “willfulness” grounds. The chance seems low, but I don’t want to get to the point of going to immigration court (removal proceedings) and apply for the waiver. I’m currently still seeking another opinion from a lawyer.

[Lina123]

Thanks for your advice! I plan to appeal in “materiality” and “willfulness” grounds. The chance seems low, but I don’t want to get to the point of going to immigration court (removal proceedings) and apply for the waiver. I’m currently still seeking another opinion from a lawyer.

How do they know you have family in the USA? That would be the answer to how to go about the problem. Because if you admitted to them that you have family, and/or they have your aunt and uncle as your green card sponsors, or if they were sponsoring your parents to come over on visiting or siblings grounds, it will be hard to appeal on “materiality” grounds. However, willfulness can always be challenged.

I never had to go though that because I have no family here. But it’s so odd not to let people be because they have distant relatives in the US.

I’m rooting for you!

[tl2912]

Thanks Lina123 ! it was during the citizenship that I was asked whom I lived with in the past. I wasn't aware that I had to list all my relatives in DS-160 application - the agency in Vietnam told me that those relatives were irrelevant.

[Mike E]

IANAL

I agree. Neither willful nor material.

Not material because you didn’t adjust status through these relatives.

Not willful because it is not legally possible for an aunt, uncle, or cousin (unless you marry one in one of the states that allows that) to petition an I-130.

[Enub4]

In 2015, I got married to a US citizen and filed for my green card. In 2018, I filed for the AOS and got no response. In 2020, after 2.5 years of waiting, I filed for citizenship to speed up the process. In 4/2021, I got a combo interview for my green card and citizenship. The interviewer claimed that I misrepresented the information of other relatives and denied my citizenship application due to inadmissibility to the U.S.

I am having a hard time understanding what you wrote here. You got married in 2015 and got your GC in 2018? Or did you apply to AOS in 2018?
What is a "combo interview for green card and citizenship"? From what I understand we need to have the GC for a few years before we can apply for Citizenship. Did you apply for AOS and, without a GC, you applied for citizenship?

Maybe you received the GC in 2016 (conditional GC) and in 2018 you started the process to remove the conditional status?