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False Claim to U.S. Citizenship: There’s No Waiver!

It seems natural for many people to do what they believe is necessary in the moment to survive. Often, they take action based on the opinions of family, friends, co-workers, neighbors, or online forums. Often it doesn’t come back to hurt them. Often they may be eligible for a waiver or some type of pardon for the prior errors. There is a very notable exception! There is no waiver for a false claim to U.S. citizenship.

For one example, there are very unfortunate cases of people checking the U.S. citizen box on a Form I-9 in order to get employment. Years later, in a genuine marriage to a U.S. citizen, perhaps even having U.S. citizen children, they want to obtain permanent residence based on the marriage. With two exceptions, they can’t.

This rule became effective as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) September 30, 1996.  INA §212(a)(6)(C)(ii); 8 U.S.C. §1182(a)(6)(C)(ii).  A false claim to citizenship made prior to that date will not subject an applicant to this severe punishment. Likewise, if an applicant’s parents were U.S. citizens, and the applicant himself was brought to the U.S. as an infant and therefore “reasonably believed” he was in fact a U.S. citizen, there is an exception. However, the applicant would need to prove the parents’ status and his presence in the U.S. since early childhood. For example, someone who entered at, say, 14 years old, although he was a minor at the time, was old enough to know he was not born in the U.S. In that case it would not be “reasonable” for him to claim he believed he was in fact a citizen.

Unless the applicant can show either that the false claim was prior to September 30, 1996, or that he qualifies under the “reasonable belief” exception, there is no way around this issue. The law does not consider how long the person has been in the U.S., how many U.S. citizen children or family members he has; it does not consider the hardship to the U.S. citizen family members. There is no waiver.

Whether a person is processing for an immigrant visa through a consular post abroad or applying to adjust status in the U.S., the application forms ask the question whether the person has ever claimed in writing or in any way to be a U.S. citizen. The forms are under oath. I have been with clients at many adjustment interviews when the officer asked, “How were you working?” They don’t always ask, but it does come up.

An attorney who learns that a client has made a false claim to citizenship must withdraw. The attorney cannot stand by a client s/he knows is not being truthful; the lawyer cannot be herself an accessory to fraud. On the other hand, a lawyer cannot stand by a case she knows is true, admitting there was a false claim to citizenship, knowing that answer means for certain that the case will be denied. Doing so would cause harm to the client. Therefore, in everyone’s best interest, the only solution is to withdraw from the case.

The best solution, of course, is for more people to be aware of this rule. As ICE increases its activities auditing employer’s I-9 forms, it is more likely that the false claim will become known. Unless the claim was made prior to September 30, 1996, there is no time limit. The false claim may have been made 10, 15, 20 years before the person applies for immigrant status, but the passage of time will not “forgive” the false claim to citizenship.

It seems this rule is not well-known in the various communities. It needs to be.