By Ben Loveman & Nancy E. Miller

The Department of Homeland Security (DHS) and Department of State (DOS) recently enacted an important change to their interpretation to the law which permanently bans those who have made false claims to being a U.S. citizen.  The change means that persons who previously were refused immigrant visas or had their applications for adjustment of status denied may now be eligible for permanent residency in the United States.

Since September of 1996, non-citizens who made false claims to U.S. citizenship “for any purpose” have been permanently inadmissible under the Immigration & Nationality Act (INA).  Unlike other grounds of inadmissibility, there is no waiver available.  Thus, once this ground of inadmissibility is found to be applicable, a person is forever prohibited from becoming a permanent resident regardless of familial ties, other equities, or mitigating factors.

The provision has been interpreted broadly as applying to persons who have falsely claimed U.S. citizenship for many different reasons including in employment applications, on Form I-9, in connection with attempts to enter the U.S., and even in loan applications.  Further, despite being a highly contentious issue, both DHS and DOS have applied the ban to minors.  Before the recent announcement, there were only two exceptions to the permanent ban for false claims to citizenship.

The first exception is based on the date of the false claim.  A false claim to citizenship made before September 30, 1996 does not trigger the permanent bar.  Persons having made a false claim to citizenship before this date might still need a waiver for having made a misrepresentation but will not be permanently banned.  The second exception is only applicable to persons with two U.S. citizen parents, who resided permanently in the United States prior to age of sixteen, and who reasonably believed that he or she was a citizen.  Aside from these two exceptions, persons having made a false claim to citizenship can only gain entry to the United States as non-immigrants with work or visitor visas and only if they are granted a non-immigrant visa waiver under Section 212(d)(3) of the INA.

However, in two separate letters to Senator Harry Reid of Nevada, the DOS and DHS signaled that both federal agencies are ushering in a new interpretation of the false claim to US citizenship bar.  The two letters, dated August 29, 2013 and September 12, 2013, indicate that the agencies have concluded that there are some circumstances under which this permanent ground of inadmissibility should not be applied to individuals who are under the age of 18.

Importantly, the new policy does not expressly limit itself in applicability only to minors having made false citizenship claims.  Both DHS and DOS provided clarification of how the agencies will apply the false claim to citizenship ground of inadmissibility.  Both agencies state that the false claim ground to inadmissibility will not be triggered unless the false claim is made knowingly.  In addition, the agencies set an affirmative defense to the applicability of the inadmissibility ground where: 1) the individual was under the age of 18 when the false claim was made, and 2) at that time he or she lacked the capacity to understand the nature and consequences of the false claim.  The burden of proof in these cases will be on the person who made the false claim to establish these elements clearly and beyond doubt in order to escape a permanent ban.The agencies state in their letters that this new guidance has been provided to the field officers and will be implemented immediately.

Clearly, this new guidance is directed at removing the permanent bar in cases of children who have made false claims to citizenship before they were old enough to understand the consequences of their actions.  The policy is welcome and laudable on this basis alone.  But the new policy may also open the door for adults who have made false claims to challenge the permanent bar if they can establish that the claim was not made knowingly.

It remains to see just how broadly the new policy will be implemented and if it will provide relief for those who were not minors the time they made false claims to citizenship.  If you or a loved one believes this change in policy may affect you, it is crucial that you consult with an experienced and reputable immigration attorney who can assess your case and determine the best course of action.
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