CONSEQUENCES OF FALSELY CLAIMING U.S. CITIZENSHIP
Visitors are not permitted to accept employment or work in the United States. You do not become a U.S. citizen by marrying a U.S. citizen. While this seems straight forward, many non-U.S. citizens do not realize the risks of pretending to be a U.S. citizen. If you lie about being a U.S. citizen to work, vote in elections, or receive a benefit under any federal (think social security number) or state law (think driver’s license), this could stop you from getting a green card or immigrant visa. It can also lead to your deportation from the United States, even if you are already a permanent resident.
A false claim to U.S. citizenship creates a lifetime ban to obtaining permanent residence through a family or employment-based petition. Moreover, there is no waiver available for false claims to citizenship, and there is limited relief from removal available to non-citizens who falsify their citizenship status, either knowingly or unknowingly. One exception is where the person falsely claiming US citizenship has been permanently residing in this country since age 16, shows both parents are or were US citizens, and reasonably believes the false claim was true.
While a false U.S. citizenship claim seems relatively harmless, it is one of the most serious forms of fraud or willful misrepresentation to obtain immigration benefits. It can also have more serious consequences than a criminal conviction. If obtaining a green card or immigrant visa is on your wish list, you should avoid lying about being a U.S. citizen to gain immigration benefits or any benefits under federal or state law.
WHEN DOES A FALSE U.S. CITIZENSHIP CLAIM ARISE?
Though one can imagine countless scenarios, the following are common situations that may lead to a charge of inadmissibility or deportability for having made a false claim to U.S. citizenship:
Oral statements, including testimony;
Employment related: checking “U.S. citizen” on Form I-9, Employment Eligibility Verification
using a social security number or other identification belonging to a U.S. citizen for purposes of obtaining employment;
Application for a driver’s license;
Stating that you are a U.S. citizen on a government-backed loan or mortgage application for the purpose of buying a home.
College application and student loans;
Voter registration and voting in a local, state, or federal election;
Application for a U.S. passport;
Immigration inspection and immigration applications;
Application for government benefits or licenses.
MOST COMMON SITUATION: FORM I-9, EMPLOYMENT ELIGIBILITY VERIFICATION
False U.S. citizenship claims most commonly arise when the non-citizen completes and signs the Form I-9, Employment Eligibility Verification, when being hired for a job.
All U.S. employers must use the I-9 to document verification of the identity and employment authorization of each new employee (both citizen and non-citizen) hired after November 6, 1986, to work in the United States.
The employee is required to check one of four boxes to show why he is eligible to work in the United States. Section 1 of the Form I-9 (Rev. 03/08/13) states:
I attest, under penalty of perjury, that I am (check one of the following):
A citizen of the United States
A noncitizen national of the United States (See instructions)
A lawful permanent resident (Alien Registration Number/USCIS number) __________
An alien authorized to work until (expiration date, if applicable, mm/dd/yy) ________. Some aliens may write “N/A” in this field.
Wrongfully checking that you are a U.S. citizen generally amounts to a false U.S. citizenship claim.
The use of a U.S. citizen’s social security number or other identification, or the use of a fake U.S. birth certificate or a fake social security card (that contains no employment restrictions) is further evidence of a false U.S. citizenship claim.
Employers must record the document title (e.g. driver’s license and birth certificate) on the Form I-9. They may, but are not required, to retain copies of the documents.
Employers must retain a Form I-9 for all current employees. They also have to retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later.
When you seek to adjust to permanent resident status, you need to complete the Form I-485 and file it with U.S. Citizenship & Immigration Services (USCIS). Unlike the Form N-400, Application for Naturalization, the I-485 does not ask whether you have ever misrepresented being a U.S. citizen.
The I-485 application, however, must be accompanied by a Form G-325A, Biographic Information, which requires you to list your employers for the last five years.
Those who are applying for an immigrant visa at the U.S. Consulate must complete and file the DS-260, online immigrant visa application. The DS-260 does ask questions about your employment history.
At your I-485 or immigrant visa interview, the adjudication officer could ask whether you have ever made a false claim to citizenship. The officer may also ask about what documents or information you presented to the employer to be eligible to work. This line of inquiry is not very common, but is generally relevant.
Although the employer — not the employee — is responsible for keeping the I-9 records, the officer could request you produce the I-9s from past employers or current employers as a condition for approving your immigration case. Some USCIS officers might also subpoena the I-9 records from your prior employers or current employer. If the employer is not under investigation for violating I-9 requirements or hiring unauthorized workers, it might refuse to hand over the I-9 records. But many employers simply forward the available records to USCIS upon request, without objection. Therefore, if the citizen box is checked on the I-9, the officer may find that you made a false claim to U.S. citizenship and therefore do not qualify for a green card or immigrant visa.
POTENTIAL ARGUMENTS TO DEFEAT A CHARGE OF FALSE CLAIM TO U.S. CITIZENSHIP
a. Waiver of inadmissibility available for claims made prior to Sept. 30, 1996
False claims to U.S. citizenship made before September 30, 1996 may still render one inadmissible pursuant to § 212(a)(6)(C)(i) as fraud or misrepresentation if made to a U.S. government official to obtain a benefit under the INA. A waiver of inadmissibility for this ground is available in limited circumstances under INA § 212(i) if the individual can show extreme hardship to a U.S. citizen or LPR spouse or parent.
b. The claim was in good faith or not made “knowingly”
Immigration officers, immigration judges, government counsels, and U.S. Consulate officers generally agree that the false U.S. citizenship claim must be intentionally or knowingly made. Your mental capacity and English language skills could be relevant to whether you intentionally or knowingly made a false claim. You have an affirmative defense if you made the false claim while you were a minor. There is also a specific exception preventing deportation if you were under age 18 when you made the false claim, you permanently resided in the U.S. (with a green card) before you turned 16, each of your natural or adopted parents were U.S. citizens or are U.S. citizens, and you reasonably believed you were a citizen, too.
There is also ambiguity in old versions (i.e. before April 3, 2009) of Form I-9, which combined a “citizen or national of the United States” into one box. In this situation, the person may argue that the I-9 doesn’t show clearly whether he claimed to be a citizen or national. Immigration law punishes false claims to U.S. citizenship, but not false claims to U.S. nationality.
c. Claim was made by someone else
The statute states clearly that the individual must have represented “himself or herself” as a citizen. Therefore, claims made by a third party on one’s behalf should not give rise to a charge of having made a false claim to U.S. citizenship. §§ 212(a)(6)(C)(ii); 237(a)(3)(D). However, even where the claim was made by a third person, an individual who was aware of and was an active participant in the claim, may be deemed to have made a false claim to U.S. citizenship where all the other elements are present. For example, in an unpublished decision, the BIA concluded that where an individual who does not speak English has her photo taken, observes the creation of a false identification card, is present while a third party fills out an employment verification form using a U.S. birth certificate, and uses the false documents, the individual has made a false claim to U.S. citizenship. Rut Betania Castillo de Figueroa, A095 982 111 (BIA Dec. 11, 2013).
d. Timely Retraction
If you timely and voluntarily retract your false U.S. citizenship claim, you will probably not be found inadmissible or removable. For this defense to work, you would have to timely and voluntarily take back your false claim and correct the error before the lie is exposed or is about to be exposed. What would qualify as a timely retraction depends largely on the facts, but must be done at the first opportunity.
It can be tempting to falsely claim U.S. citizenship when there is no other way to find employment or gain entry into the U.S. But this could later cause harm to your green card or immigrant visa application if, for example, you marry a U.S. citizen or find a U.S. employer who is willing to petition for you.
If you are already a permanent resident, a false claim to U.S. citizenship can prevent you from establishing good moral character for naturalization and subject you to removal from the United States.
False U.S. citizenship claims do not prohibit foreign nationals from applying for certain types of relief, such as a U visa and asylum (which can lead to permanent resident status) and cancellation of removal (which results in permanent resident status). But these forms of relief carry strict eligibility requirements. For example, an Immigration Judge may find that a Cancellation of Removal applicant who makes a false claim lacks the “good moral character” necessary to obtain this relief.
If you ever want to become a permanent resident through a family or employment-based petition, your best choice is to avoid making false claims to U.S. citizenship for benefits under immigration law or benefits under federal or state law. The potential defenses are sometimes hard to establish and don’t always work.
Questions regarding false claim to citizenship can be addressed in a scheduled consultation with a Gherasimov Law Firm attorney.
This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.