9 FAM 302.9-4(B)(1)  Criteria for Finding

a. To find an individual ineligible under INA 212(a)(6)(C)(i), you must determine that the following four elements have been satisfied:

(1)  There has been an affirmative act of misrepresentation made by the applicant 

(2)  The misrepresentation was willfully made;

(3)  The fact misrepresented is material; and

(4)  The applicant by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA.

9 FAM 302.9-4(B)(3)  Interpretation of the Term Misrepresentation

a. "Misrepresentation" Defined:  As used in INA 212(a)(6)(C)(i), a misrepresentation is an assertion or manifestation not in accordance with the facts.  Misrepresentation requires an affirmative act taken by the individual.  A misrepresentation can be made in various ways, including in an oral interview or in written applications, or by submitting evidence containing false information.

b. Differentiation Between Misrepresentation and Failure to Volunteer Information:  In determining whether a misrepresentation has been made, it is necessary to distinguish between misrepresentation of information and information that was merely concealed by the individual's silence.  Silence or the failure to volunteer information does not in itself constitute a misrepresentation under INA 212(a)(6)(C)(i).

c.  Misrepresentation Must Have Been Before a U.S. Official:  For a misrepresentation to fall within the purview of INA 212(a)(6)(C)(i), it must have been made to an official of the U.S. Government; the official will normally be a consular officer or a Department of Homeland Security (DHS) officer. 

d. Misrepresentation Must be Made on Individual's Own Application:  The misrepresentation must have been made by the individual with respect to their own visa application or application for admission to the United States, including any information provided in support of the application.  Misrepresentations made in connection with some other person's visa application or application for admission to the United States do not fall within the purview of INA 212(a)(6)(C)(i) but may be considered regarding the possible application of INA 212(a)(6)(E). 

e. Misrepresentation Made by Applicant's Agent or Attorney:  The fact that an applicant pursues a visa application through an attorney or other third party does not serve to insulate them from liability for misrepresentations made by such agents, if you find that the individual was aware of the action being taken in furtherance of the application.  This standard would apply, for example, where a travel agent executed a visa application on an applicant's behalf.  Similarly, an oral misrepresentation made by another person on behalf of an individual at the time of application for admission to the United States does not shield them from ineligibility under INA 212(a)(6)(C)(i), if you find that they were aware at the time of the misrepresentation made on their behalf.

9 FAM 302.9-4(B)(5)  Interpretation of the Term Material Fact

a. Materiality Defined: The Attorney General has declared the definition of "materiality" with respect to INA 212(a)(6)(C)(i) to be as follows:  "A misrepresentation made in connection with an application for a visa or other documents, or with admission to the United States, is material if either:

(1)  The individual is ineligible on the true facts; or

(2)  "[T]he misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he or she be inadmissible."  (Matter of S- and B-C, 9 I. & N. Dec. 436, at 447.)  This is also often referred to as "The Rule of Probability."

(3)  Materiality is determined in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the individual's application for a visa, admission to the United States, or other immigration benefit.

INA 212(a)(6)(A+C+E);  212(a)(9)(A+B)

212(d)(11) The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection (a)(6)(E) in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under section 1181(b) of this title and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 1153(a) of this title (other than paragraph (4) thereof), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.