Pitfalls & Consequences of Improperly Completing USCIS Forms
One of the most common misconceptions (and dangerous pitfalls) about U.S. immigration law made by prospective immigrants, their family members or employers is that all one must do is quickly complete a few simple forms and file them with the government. While one of the recurring themes in many of my posts is the fact that most immigrant visa petitions are granted or denied based on the strength and sufficiency of the supporting documents, I rarely talk about the importance of properly completing government forms.
I had the occasion to consider this recently when I was retained to handle two cases which involved visa denials that were the direct result of the applicant's failure to properly complete immigration forms. The consequences of failing to properly complete immigration forms range in severity from significant delays in the process to rendering an applicant inadmissible. Furthermore, the severity of the consequences isn't always directly proportional to the gravity of the mistake or the applicant's bad intent. In the worst cases, a simple and honest mistake can lead to serious consequences.
Examples of Real Case Scenarios
Case #1: The “Innocent” Omission of Facts
Applicant's for an non-immigrant visas (including K1 fiance visas) are required to complete form DS-156—Non-immigrant Visa Application. Question 37 of that form asks whether or not the applicant has any close relatives who are in the U.S., are U.S. citizens or lawful permanent residents. The question specifically asks whether the applicant has a spouse, child, parent, fiance/fiancee or sibling in the U.S. The question is probably asked for a number of reasons but one of those reasons is to access the applicant's likelihood of returning to his or her country. (The thought being that he more close relatives that applicant has in the U.S. the less likely it is that he or she will return.) Many applicant's realize this so decide it might be ok to just leave this out to improve their chances. In fact, I have spoken to many non-immigrant applicants who have been specifically advised by “visa consultants” or “travel agents” to omit this information. In other instances the non-immigrant applicant has informed me that he or she didn't even complete the form—it was completed on their behalf by a “consultant” or other third party. Guess what? It doesn't matter, the applicant is still responsible for the information in the application. Applicants who are unwise enough to take the advise of these unscrupulous consultants risk being found inadmissible to the U.S. and subject to potential criminal penalties.
Another common reason that applicants are reluctant to answer this question honestly or completely is because the applicant has family members who are illegally present in the U.S. and they do not want to disclose this to the government. This was the situation in a recent case I was involved in. The applicant was applying for a K1 visa and had a sister who was unlawfully present in the U.S. To protect her sister she omitted this information on Form DS-156. During the visa interview, the consular officer discovered that the information provided in question 37 was false and denied her visa pursuant to INA §212(a)(6)(c)(i). She is now inadmissible to the U.S. and will not be able to obtain a visa unless she can convince the government that the denial of her visa will cause extreme hardship to a U.S. citizen. This is very difficult to prove. She claims that her fiance' completed the form for her and that he did not know she had a sister in the U.S. This may very well be true. Unfortunately for her, it doesn't matter. In bold print directly above the line where she signed her name it states:
I certify that I have read and understood all of the questions set forth in this application and the answers I have furnished on this form are true and correct to the best of my knowledge and belief. I understand that any false or misleading statement may result in the permanent refusal of a visa or denial of entry into the United States. I understand that my possession of a visa does not automatically entitle the bearer to enter the United States of America upon arrival at a port of entry if he or she is found inadmissible.
The form explained very clearly and concisely the importance of providing accurate information and warned of the specific consequences of providing false information. Yet, she signed the form anyway and now she is inadmissible.
Fortunately, this person later retained my services and I was able to obtain a waiver and an immigrant visa for her. However, it was a long and rather expensive process that could have been avoided if the couple had sought legal counsel in the first place. Worst of all, the mistaked resulted in the separation of the couple for more than three years.
Case #2: Innocent Misuse of a Defined Legal Term
In another case, a client who I represented stated in question #42 of form DS-230, Part II that he “[w]ent out of status for a little over six months.” That question asks whether or not the applicant has ever been refused admission to the U.S. at a port of entry. In this case, the client was doing his best to complete the form honestly and accurately. However, he did not understand the legal definition of the phrase “out of status” and it's potential implications. In reviewing the application, the consular officer noted his response and denied the visa. The applicant was given an opportunity to provide additional documentation and overcome the denial but it created a huge and costly mess. The part about this case that was so unfortunate for the client was that he was never legally “out of status.” He misunderstood the definition of that term and who it is applied to. In this case, the applicant was not “out-of-status” because he was in F1 student status and F1 students are admitted for “duration of status” and are not considered “out of status” until there has been a formal adjudication of this by an immigration officer.
This was a complicated mess to clean up but I was eventually able to obtain an immigrant visa for this gentleman as well. However, his failure to seek legal assistance in the first place cost him a lot of additional money and time away from his U.S. Citizen spouse.
Case #3: A Woman of Many Names
Another troublesome case involved an elderly mother of a naturalized U.S. citizen. She was born in Syria in the early 1900's and there was no centralized system for issuing and maintaining birth records. As a result, she did not have an official birth record from Egypt. What she had was a post-hoc record of birth from another north African country. The other challenge was that several variations of her name were used on various government documents she had been issued over the course of her life. If I recall correctly, after considering her maiden name there were something like 8 variations of her name used in various documents. The woman's mother prepared the forms for the immigration petition for her mother and failed to list all of the variations of the applicant's name on the relevant forms. The USCIS issued a request for evidence essentially asking the petitioner and applicant to prove the applicant's identity. Because of the issue with the birth certificate and the omission of some of the name variations on the application, the USCIS flagged the application for potential fraud and it was closely scrutinized.
The client came to me for assistance and we were eventually able to prove the applicant's identity but it required expensive DNA testing and lots of time and effort. It appeared to me that this issue was only raised by the USCIS adjudicator because of the ommission on the forms of all the name variations and thus may have been avoided by proper completion of the forms in the first instance.
Criminal & Civil Consequences for Falsifying or Concealing Material Facts
The cases I discussed above involved situations were the consequence of the applicant's failure to honestly, accurately and completely complete the required immigration forms was a denial of the application, delay of it's approval or finding of inadmissability or both. However, U.S. Law allows for much more serious consequences for those who knowingly or willing provide false information or conceal material facts on immigration forms or documents submitted in support thereof.
Warnings of these potental consequences can be found on most all USCIS forms. For example, on Form I-129F you can find the following warning:
You may be fined up to $10,000 or imprisoned for up to 5 years, or both, for knowingly and willfully falsifying or concealing a material fact or using any false document in submitting this petition. Title 18 United States Code, Section 100.
Additionally, above most signature blocks on the USCIS forms you will find language like this:
I certify, under penalty of perjury under the laws of the United States of America, that the foregoing is true and correct.
Similar behavior is also prohibited under the Immigration and Nationality Act. One well-known provision provides for criminal penalties and fines for not only the person who files the petition but also anyone who assists in the preparation or filing of the petition which includes lawyers. Specifically, INA §274C(a)(5) provides that:
It is unlawful for any person or entity to knowingly prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted.
Thus, the potential criminal consequences apply not only to the applicant but to anyone who may have assisted with the preparation of the forms which in some of the examples discussed above included family members who assisted the applicant.
As noted in Case #1, one of the more serious (and more commonly imposed) consequences of improperly prepared immigration forms which include misrepresentations of material facts, is a finding of inadmissibility under INA §212(a)(6)(c)(i). That section of law provides that:
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
I am not the type of immigration attorney that believes that there are no cases where an applicant can successfully, and without undue risk, represent themselves. However, the case examples above illustrate some of the many unanticipated pitfalls that can have serious unforeseen consequences that layperson applicants representing themselves might not recognize. If you would like assistance with your immigrant or non-immigrant visa petition please contact us today for your free case evaluation.