In this series of articles, we will tackle frequently asked questions in the context of US immigration law and help to dispel some popular misconceptions.

We have summarized some key issues below. Please note, the following content constitutes “information”, not “legal advice”. It should not be used as a substitute for seeking legal advice from a licensed US immigration attorney.

#3 “I lied to the US Government in previous immigration applications. It was a stupid mistake and I regret it. Will I be admissible to the US?!”

You will need to seek legal advice from a licensed US immigration attorney regarding your unique position before making travel plans to the US. However, we have summarized some key issues below, for information purposes only.

ESTA v Visa

The US Embassy website states that individuals who have previously been denied admission to the US are not eligible to travel to the US under the Electronic System for Travel Authorization (ESTA).

Therefore, if you have previously been denied admission to the US by virtue of any fraud or misrepresentation, you will need to formally apply for a visa to enter the US, regardless of the purpose of your visit.

Inadmissibility to the US

If an individual has committed fraud or willfully misrepresented a material fact in order to procure an immigrant benefit, he or she will automatically be deemed inadmissible to enter the US, in the absence of a waiver of inadmissibility.

The first task, therefore, is to determine if the actions of the individual in question constitute “fraud” or “wilful misrepresentation of a material fact” within the meaning of the relevant legislation.

i. Fraud

In order to be deemed inadmissible to the United States due to the commission of fraud in procuring an immigration benefit, there must be a determination that the applicant:

(a) Made a false representation of a material fact,
(b) With knowledge of the falsity of the representation and
(c) With the intent to deceive a Consular or Immigration Officer

If all three limbs of the above test are satisfied, fraud will be made out and the applicant will be inadmissible to the US.

ii. Misrepresentation

In order to be deemed inadmissible to the United States due to wilful misrepresentation of a material fact in order to procure an immigration benefit, there must be a determination that the applicant:

(a) Willfully made a statement to the US Government
(b) The statement in question was a false statement
(c) The statement concerned a “material fact”.

If all three limbs of the test are satisfied, misrepresentation will be proved and the individual will be deemed inadmissible to the United States.

If the actions of the individual in question do not constitute fraud or wilful misrepresentation within the meaning of the statute, the individual will not automatically be deemed inadmissible to the United States (although they may be inadmissible to the United States for another reason).

Waiver of Inadmissibility

If an individual is deemed inadmissible to the US due to the commission of fraud or misrepresentation in procuring an immigration benefit, he or she will need to seek legal advice regarding the merits of applying for a waiver of inadmissibility.

It is difficult to successfully obtain a waiver of inadmissibility in the context of fraud or misrepresentation in previous immigration applications, since issues of fraud and misrepresentation affect the credibility of an applicant in the eyes of US Immigration Officers. However, it is possible to overcome these difficulties by submitting a well-drafted application, which addresses all of the relevant issues and is supported by appropriate evidence.

At Davies Legal, we have a wealth of experience in all areas of US immigration law, including cases involving allegations of fraud and misrepresentation. We can assist you in your application and ensure your application stands the best chance of success. Call now for advice on the services we provide, the likely timescales and our fixed fee structure.

Published: 14th February 2017

Filed under: Articles, FAQ