In 1996, a provision was added to the immigration laws that expanded the scope of those provisions that made an intending immigrant inadmissible and barred adjustment of status if the individual made false claims to U.S. citizenship. Previously, such claims must have been made to procure a specific benefit under the immigration laws and the fraud or material misrepresentation must have been made to a U.S. government official. After implementation of the 1996 law, however, the bar to admissibility and adjustment applied to anyone who falsely claims U.S. citizenship for any purpose or benefit under the immigration laws made to a government official or even a private employer. This new provision, for example, included instances where non-citizen checks off the “citizenship” box on an I-9 form and returns it to an employer. Such individuals who are found inadmissible for having made a false claim to citizenship are permanently inadmissible and are removable. While waivers are available for fraud or material misrepresentation in other contexts, no waivers are available for false claims to citizenship even for the spouse or children of U.S. citizens or lawful permanent residents. Recently, DHS and DOS reviewed the application of this provision and will now apply a new interpretation.
First, under the new interpretation, only a knowingly false claim can support a charge that an individual is inadmissible under this section of law. The individual claiming not to know that the citizenship claim was false has the burden of establishing this affirmative defense by the appropriate standard of proof; for example, applicants for admission or adjustment of status must prove their case “clearly and beyond doubt.” Second, an individual who was under the age of 18 at the time of the false citizenship claim and at that time lacked the capacity to understand and appreciate the nature and consequences of the false claim can also avoid a finding of inadmissibility.
The government’s new interpretation became public through a response to a letter by Senator Reid inquiring about this provision, and appropriate USCIS and DOS adjudicators are being advised of these changes. No precise guidelines however are available.
For years, immigration advocates have been seeking to change the law to limit the ban on admissibility and removability to persons who willfully make false claims to citizenship; advocates have also sought to create a discretionary inadmissibility waiver in the case of an immigrant who is the close relative of a U.S. citizen or lawful permanent resident. While those efforts have not been successful, the new DHS and DOS interpretation, if applied generously, will help those who unwittingly make a mistake.