In order to get a green card, an alien must establish that he/she is admissible to the United States. An individual may be inadmissible for many different reasons including fraud or willful misrepresentation of a material fact. Perhaps the most serious misrepresentation that can render an alien inadmissible is by falsely claiming that he/she is a U.S. citizen.
When an alien makes a material and willful misrepresentation to obtain a visa or gain entry to the U.S., such alien is inadmissible but he/she may apply for a discretionary waiver under the Immigration and Nationality Act (INA). On the other hand, there is virtually no waiver if an alien falsely claims that he/she is a U.S. citizen and the alien becomes removable and permanently inadmissible for such misrepresentation.
The violation refers to false representations of U.S. citizenship made in order to obtain a purpose or benefit under the INA or any other Federal or State law. Under the INA, it is unlawful to hire an individual whom the employer knows is an unauthorized alien.
Despite the explicit inclusion of employment as a benefit for which an alien is prohibited from making a false claim of U.S. citizenship, many people are not aware of the ease by which such a violation can be committed: a non-citizen applying for employment who willfully or inadvertently checks off the first box in an I-9 (Employment Eligibility Verification) form lays him/herself open to deportation and a lifetime bar from ever returning to the U.S.
In other words, the false representation need not be made to the government or immigration authorities in order to trigger the draconian consequences of a false citizenship claim. As illustrated in the Sixth Circuit case of Ferrans v. Holder, falsely claiming that one is a U.S. citizen to a potential employer could have very serious consequences.
In that case, the alien was an applicant for adjustment of status. In his interview, it was found that he falsely claimed on Form I-9 that he was a U.S. citizen so that he could get a job at Jiffy Lube. The USCIS denied his application and he was later placed in removal proceedings. The immigration judge found him removable. He later appealed to the Board of Immigration Appeals, but the Board dismissed his appeal.
He argued before the Court of Appeals that while he falsely indicated that he was a U.S. citizen on the I-9 for a private employer, he never misrepresented his citizenship to the U.S. government or immigration authorities. In short, he explained, it was not a “false claim for an immigration benefit or purpose”.
The Court rejected his argument. It ruled that given the plain language of the law false representation of U.S. citizenship for the purpose of obtaining employment, whether public or private, is done for a “purpose or benefit” under the INA.
The false claim issue arises most commonly when an alien fills out the I-9 to gain employment by checking Box 1, thereby attesting under penalty of perjury that he/she is a U.S. citizen. In many of the cases that touched on this issue, the common defense centered on the ambiguous nature of the attestation in the old version of the I-9 as to whether the alien represented himself to be a U.S. citizen or national.
To be clear, the INA punishes only false claims to U.S. citizenship and not false claims to U.S. nationality. However, this nationality/citizenship ambiguity has become less relevant under the new version of the I-9 which separates the choices of U.S. citizen and non-citizen U.S. national.
Given the harsh consequences under the law, non-citizens are thus well reminded to be careful not to make any false U.S. citizenship claims for any purpose, whether to obtain a visa, enter the United States, find employment, apply for welfare benefits, or some other purpose.