When you apply for a work visa in the U.S., you must make sure that your application is complete (contains the correct filing fee, the necessary forms, and supporting documentation), and that the application contains no misrepresentation of fact in either the application itself or the supporting documents.
A misrepresentation of fact is basically a lie on the application. For example, if you state on your application that you have a Master’s degree in Engineering, but you actually have a Master’s degree in Psychology, the statement "I have a Master’s degree in Engineering" is a misrepresentation of fact (also referred to as "fraud" in this article).
This article will explain the very serious immigration consequences that result from committing misrepresentation/fraud to obtain a work visa -- in particular, the commonly used H-1B visa.
All U.S. work visas come with stringent requirements regarding the applicant's background, qualifications for the job, and more -- leading some applicants to overstate their qualifications or otherwise misrepresent their intentions. The H-1B, for example, is available to foreign workers who come to the U.S. to work for a U.S. employer in a "specialty occupation," which typically requires at least a Bachelor’s degree.
Many a foreign national has been accused of either (1) submitting fraudulent documents such as fake educational degrees, fake passports, or fake employment verification letters, or (2) misrepresenting their actual intention to work for the U.S. employer.
Document fraud is typically discovered at the consulate when the foreign national goes in for the visa interview. If you submit fraudulent documents, such as a fake passport, educational degree, or something else, and the consular officer discovers the fraud, the officer will revoke the USCIS's approval of the visa petition (Form I-129) and deny the H-1B visa.
What's more, if the consular officer finds that you committed a misrepresentation or fraud, you will be banned from entering the U.S. with any sort of visa.
Misrepresentation of intent can occur when the visa holder comes to the U.S. but does not actually plan to work for the U.S. employer. This type of misrepresentation is less common than providing fake documents, but it still happens.
For example, let’s say you are a foreign national from Russia. You come to the U.S. with an H-1B visa, supposedly so that you can work for Company A. However, instead of working for Company A, you work for Company B, which never filed an H-1B application for you.
If USCIS finds out that you are not working for Company A, it will feel that you misrepresented your intent in order to obtain the H-1B visa. USCIS will terminate your H-1B status and initiate removal (deportation) proceedings against you. Additionally, once you leave the U.S., you will also be banned from entering the U.S. on future visas.
Once immigration officials determine that you have committed a misrepresentation/fraud in order to obtain your work visa (whether you are inside the U.S. or in your home country), you will be considered "inadmissible’ to the United States." Inadmissibility means that you are not allowed to enter the U.S., no matter what ground of eligibility you claim.
The immigration regulations found at 8 C.F.R. Section 212(a)(6)(C)(i) cover the topic of inadmissibility because of misrepresentation/fraud. Per these regulations, once immigration officials find that you have, by fraud or by misrepresentation, sought to obtain a U.S. visa, you will be permanently barred from entering the United States.
This permanent bar means exactly what it says it sounds like: You cannot enter the U.S., no matter how much time has passed since your misrepresentation/fraud.
Committing a misrepresentation or fraud in order to obtain a U.S. visa is very serious, and you will want to consult with an attorney before attempting any future visa or green card applications. The good news is that it may still be possible for you to legally enter the United States.
To do so, you will need what's called a waiver. A waiver is basically an indication by immigration officials that, even though you committed misrepresentation or fraud, they will overlook that, and allow you to enter the United States.
Waivers can be very difficult to obtain and are available only in extremely limited situations.
First, you can obtain a waiver if you are applying for an immigrant visa and you are the spouse or child of a U.S. citizen (USC) or lawful permanent resident (LPR, or green card holder). If you meet these basic criteria, you may be granted a waiver if you can prove that not granting you a waiver would result in extreme hardship to your USC or LPR relative. Extreme hardship to you yourself does not factor into this decision, except indirectly.
Second, you may be able to obtain a waiver if you are applying for a nonimmigrant visa. This waiver does not require a special family relationship or other conditions. Instead, immigration officials will look to several factors in determining whether you should receive the waiver, including: (1) how recent and serious your misrepresentation or fraud was, (2) the reasons for your proposed travel to the U.S. (such as school, tourism, and so forth), and (3) the positive or negative effect, if any, of your planned travel on U.S. public interests (this factor is usually in regards to whether you have a USC or LPR relative who is planning for your visit.
Again, it is NOT a requirement that you have a USC or LPR relative, but immigration officials can take this into account when deciding whether to give you a waiver).