Willful Misrepresentation or Fraud in providing Documents to apply for H1B, or OPT.
April 8 2016 – Some of the students of the University of Northern New Jersey (UNNJ) who applied for an OPT or an H1B visa, have been receiving a number of requests for evidence (RFEs) based on their physical and actual attendance of UNNJ classes including but not limited to transcripts, parking space receipts, attendance records, etc. Since UNNJ was not a real school per se, many of those records were wrongfully obtained either through the brokers or the school administrations. As such bogus parking space receipts, false attendance records and false transcripts were provided to students to prove their RFEs. Such documents were actually mentioned in the complaints of the Department of Justice against some of the agents/brokers in making their complaints. As such those who have actually answered the RFEs and have knowingly participated in the scheme of getting the required RFE documents will be facing some huge difficulties in their arguments that they were only victims of UNNJ. However, note that many have actually not used any of such documents knowing that they were fraudulent. We need to wait and see now how USCIS is going to treat the benefits which have already been given to the students who applied for the OPTs or H1B visas. For the OPTs based on UNNJ, it seems they have not been issued any of them. But for those who filed for an H1B/or H4 visa and have been granted an H1B/or H4 visa, there might be some sort of revocation instigated. If you are facing this issue, call us immediately at 510 742 5887.
Below are some of the controlling rules and cases laws related to willful misrepresentation and fraud.
Fraud and Willful Misrepresentation
An applicant may be found inadmissible if he or she obtains a benefit under the INA either through:
•Fraud; or
•Willful misrepresentation.
Although fraud and willful misrepresentation are distinct actions for inadmissibility purposes, they share common elements. All of the elements necessary for a finding of inadmissibility based on willful misrepresentation are also needed for a finding of inadmissibility based on fraud. However, a fraud finding requires two additional elements.
This is why a person who is inadmissible for fraud is always also inadmissible for willful misrepresentation. However, the opposite is not necessarily true: a person inadmissible for willful misrepresentation is not necessarily inadmissible for fraud. For more on the interplay between findings of fraud and willful misrepresentation, see Section D, Comparing Fraud and Willful Misrepresentation [8 USCIS-PM J.2(D)].
Additionally, misrepresentation of a material fact may lead to other adverse immigration consequences. For example, if the beneficiary commits marriage fraud, it may have adverse immigration consequences for both the petitioner and the beneficiary.
B. Willful Misrepresentation
Inadmissibility based on willful misrepresentation requires a finding that a person willfully misrepresented a material fact. See INA 212(a)(6)(C)(i). For a definition of materiality, see Chapter 3, Adjudicating Inadmissibility, Section E, Materiality [8 USCIS-PM J.3(E)]. For a person to be inadmissible, the officer must find all of the following elements:
•The person procured, or sought to procure, a benefit under U.S. immigration laws;
•The person made a false representation;
•The false representation was willfully made;
•The false representation was material; and
•The false representation was made to a U.S. government official, generally an immigration or consular officer. See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).
If all of the above elements are present, then the person is inadmissible for willful misrepresentation.
If the person succeeded in obtaining the benefit under the INA, he or she would be inadmissible for having procured the benefit by willful misrepresentation. If the attempt was not successful, for example, the misrepresentation was detected and the benefit was denied. the person would still be inadmissible for having “sought to procure” the immigration benefit by willful misrepresentation. In each case, evidence of intent to deceive is not required. See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975).
C. Fraud
Inadmissibility based on fraud requires a finding that a person knowingly made a false representation of a material fact with the intent to deceive the other party. See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998).
For a person to be inadmissible for having procured entry, a visa, other documentation, or any other benefit under the INA by fraud, the officer must find all of the following elements:
•The person procured, or sought to procure, a benefit under U.S. immigration laws;
•The person made a false representation;
•The false representation was willfully made;
•The false representation was material;
•The false representation was made to a U.S. government official, generally an immigration or consular officer; See Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 1994).
•The false representation was made with the intent to deceive a U.S. government official authorized to act upon the request (generally an immigration or consular officer); See Matter of Tijam, 22 I&N Dec. 408, 424 (BIA 1998). and
•The U.S. government official believed and acted upon the false representation by granting the benefit. See Matter of G- G-, 7 I&N Dec. 161 (BIA 1956).
If all of the above elements are present, then the person is inadmissible for having procured an immigration benefit by fraud. Since the elements required for fraud also include the elements for willful misrepresentation, the person is also inadmissible for willful misrepresentation.
If the person was unsuccessful in obtaining the benefit, For example, the fraud was detected and the benefit was denied. he or she may still be inadmissible for having “sought to procure” the immigration benefit by fraud. In this case, the fraud element requiring the U.S. government official to believe and act upon the false representation is not applicable; however, intent to deceive is still a required element.
In cases of attempted fraud, it may be difficult to establish the person’s intent to deceive because the fraud has not actually succeeded. However, establishing intent to deceive may be unnecessary; if evidence supports a finding of willful misrepresentation, which does not require intent to deceive, See Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975). then the person is already considered inadmissible without any further determination of fraud.
Source: USCIS Manual Volume 8
