c R 240709Z JUN 99

FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
BT
UNCLAS SECTION 01 OF 02 STATE 118476

FOR CONSULAR SECTION CHIEFS AND ANTI-FRAUD OFFICERS

E.G. 12958: N/A

TAGS: CVJSJMGTJ^ERD— —
SUBJECTS FRAUD INF-UGiB14ff46S^3/i4(R) VERSUS 212(AW6XC) .
U--—
REF: 97 STATE 20710

INTRODUCTION

1. CA'S OFFICE OF FRAUD PREVENTION PROGRAMS (CA/FPP)

CONDUCTS ANTI-FRAUD TRAINING FOR OFFICERS AND FSNS
AROUND THE WORLD. IN THESE SESSIONS, THE QUESTION OF
FRAUD INELIGIBILITIES, (ESPECIALLY 214(B) VERSUS
212(A)(6)(C)). HAS REPEATEDLY EMERGED AS AN AREA OF
CONFUSION AND CONTENTION. ALTHOUGH VISA OFFICE GUIDANCE
IS AVAILABLE (REFTEL), SOME POINTS APPARENTLY STILL
GENERATE CONFUSION. CA/FPP TAKES THIS OPPORTUNITY TO
REINFORCE VO'S GUIDANCE AND TO CLARIFY THE APPLICABILITY
OF THESE TWO POINTS OF LAW IN THE FRAUD CONTEXT.

214(B): THE MOST EFFECTIVE ANTI-FRAUD TOOL

2. MOST NIV FRAUD PERPETRATORS SHOULD BE REFUSED UNDER

SECTION 214(B) OF THE INA BECAUSE MOST SUCH APPLICANTS
ARE. IN FACT, INTENDING IMMIGRANTS. THAT AN INTENDING
IMMIGRANT MISREPRESENTED A FACT IN CONNECTION WITH HIS
VISA APPLICATION, IS, IN MOST CASES, BESIDE THE POINT.
FOR EXAMPLE, IF AN APPLICANT WHO HAS FAILED TO PROVE
COMPELLING TIES TO A RESIDENCE ABROAD (NO JOB, NO
FAMILY, ETC.) PRESENTS AN ALTERED BANKBOOK, HE SHOULD BE
REFUSED UNDER 214(B). IN THE ABSENCE OF COMPELLING
TIES. THE FAKE BANKBOOK IS IRRELEVANT. (SEE PARAS 7-10
FOR A DISCUSSION OF MATERIALITY.)

3. IF THE FRAUD OR MISREPRESENTATION IS IRRELEVANT, IT

SHOULD NOT BE INVESTIGATED. THAT IS, IF THE APPLICANT
IS CLEARLY AN INTENDING IMMIGRANT, THE OFFICER DOES NOT
HAVE TO TAKE TIME TO VERIFY SIGNATURES OR REQUEST AN
INVESTIGATION TO CONFIRM OR DENY THE APPLICANTS
STATEMENTS. NOR DOES HE HAVE TO DETERMINE IF THE FRAUD
IS MATERIAL OR IMMATERIAL. THE OFFICER CAN JUST REFUSE
THE APPLICANT UNDER 214(B). SAVING CONSULAR TIME AND
RESOURCES.

A. FOR THESE 214(B) FRAUD CASES. OFFICERS SHOULD KEEP (OR

 MAKE COPIES OF) SUSPICIOUS DOCUMENTS SUBMITTED AND MAKE
EXPLANATORY NOTES ON THE OF-156. GOOD RECORDS ARE
IMPORTANT BECAUSE WHAT APPEARS AS A SIMPLE 214(B) CASE
TODAY MAY TURN OUT TO BE THE BEGINNING OF A TREND OR MAY
FIT INTO A YET-TO-BE IDENTIFIED PATTERN.

212(A)(6)(C): A SPARING TOOL

5. BASED ON DISCUSSIONS IN TRAINING COURSES AND WORKSHOPS.

IT APPEARS THAT SOME OFFICERS REFUSE MOST MALA FIDE
APPLICANTS UNDER 212(A)(6)(C). MANY ADJUDICATORS
PERCEIVE THAT 212(A)(6)(C) REFUSALS SERVE U.S.
GOVERNMENT INTERESTS BY PREVENTING INTENDING IMMIGRANTS
FROM EVER RETURNING AND THUS SAVING CONSULAR TIME IN THE
FUTURE. IN FACT. SUCH A MISAPPLICATION OF THE LAW DOES
NOT CONFORM TO THE REGULATIONS. THE SPIRIT OF U.S.
IMMIGRATION LAW. OR EFFECTIVE TIME MANAGEMENT PRACTICES.

6. ADJUDICATING A FINDING OF 212(A)(6)(C) TAKES TIME: THE

SPECIFICS OF THE CASE MUST BE WEIGHED AGAINST THE
CRITERIA OF 9 FAM 40.63. IN MANY CASES, THE ADJUDICATOR
MUST SEEK AN ADVISORY OPINION FROM VO/L/A - A TIME-
CONSUMING ACTIVITY FOR BOTH THE DRAFTER AND THE
RESPONDENT IN VO/UA. MOREOVER, 212(A)(6)(C) REFUSALS
ARE NOT AN INSURMOUNTABLE BAR TO U.S ENTRY. THIS
INELIGIBILITY CAN BE WAIVED IN ALL NIV CASES. AND IV
WAIVERS ARE AVAILABLE FOR SPOUSES, PARENTS, AND CHILDREN
OF AMERICAN CITIZENS AND LEGAL PERMANENT RESIDENTS.

212(A)(6)(C) CRITERIA

7. MISINTERPRETATION OF REGULATORY CRITERIA LEADS TO THE

FREQUENT MISAPPLICATION OF 212(A)(6)(C). A KEY
CRITERION INVOLVES THE CONCEPT OF MATERIALITY.
MATERIALITY DOES NOT DERIVE FROM THE SOLE FACT THAT AN
ALIEN HAS LIED OR PRESENTED FALSE DOCUMENTS. FRAUD OR
MISREPRESENTATION CAN ONLY BE CONSIDERED MATERIAL IF:

-THE MISREPRESENTATION CONCEALED AN "INDEPENDENT

GROUND OF INELIGIBILITY" (ANOTHER 212(A) GROUND); OR

- THE FRAUD OR MISREPRESENTATION MEETS THE "RULE OF

PROBABILITY" STANDARD.

8. THE FIRST TYPE OF MISREPRESENTATION IS GENERALLY

STRAIGHTFORWARD: AN APPLICANT WHO HAS MISREPRESENTED A
CONVICTION. WHICH WOULD HAVE MADE HIM INELIGIBLE ON
212(AX2) GROUNDS. HAS CONCEALED A MATERIAL FACT. AN
APPLICANT WHO IS INELIGIBLE UNDER ANY INDEPENDENT 212(A)
GROUND, AND WILLFULLY CONCEALS THIS INELIGIBILITY. MAY
BE FOUND INELIGIBLE UNDER 212(A)(6XC). SUCH A

127
 MISREPRESENTATION IS MATERIAL AND DOES NOT REQUIRE AN
ADVISORY OPINION.

9. THE SECOND TYPE OF MISREPRESENTATION IS LESS

STRAIGHTFORWARD. THE "RULE OF PROBABILITY" STANDARD
MUST BE APPLIED TO DETERMINE WHETHER A MISREPRESENTATION
OF THIS TYPE IS MATERIAL. SPECIFICALLY. THE APPLICANT:

- MUST BE INELIGIBLE BASED ON THE TRUE FACTS OF

THE CASE, AND

-WOULD HAVE BEEN ISSUED THE VISA HAD THE

MISREPRESENTATION BEEN ACCEPTED AS TRUE.

10. BOTH CONDITIONS HAVE TO BE MET FOR THE

MISREPRESENTATION TO BE CONSIDERED MATERIAL. THE
MISREPRESENTATION IS NOT MATERIAL IF IT WOULD NOT HAVE
NECESSARILY LED TO AN INELK3IBILITY FINDING ON THE TRUE
FACTS. FOR EXAMPLE. A MISREPRESENTATION REGARDING A
PREVIOUS 214(B) REFUSAL WOULD NOT BE MATERIAL BECAUSE A
PREVIOUS 214(B) REFUSAL. IN ITSELF. WOULD NOT
NECESSARILY LEAD TO A FINDING OF INELGIBILITY. THAT IS.
THE FACT THAT AN APPLICANT WAS CONSIDERED AN INTENDING
IMMIGRANT IN THE PAST DOES NOT MEAN THAT THE APPLICANT
IS STILL AN INTENDING IMMIGRANT AT THE PRESENT TIME.
(9 FAM 60.63. NOTE 6.3-3(B)(4)). THE MISREPRESENTATION
IS ALSO NOT MATERIAL IF THE APPLICANT WOULD NOT HAVE
BEEN ISSUED THE VISA EVEN IF THE FACTS BEING
MISREPRESENTED WERE ACCEPTED AS TRUE.

RELATED MISAPPLICATION OF P(6)(C)

11. ENTRY OF CASES UNDER THE P(6)(C) CATEGORY IS NOT A

FALLBACK OR SUBSTITUTE FOR 212(A)(6)(C). SOME OFFICERS
REFUSE APPLICANTS UNDER P(6)(C) WHEN THEY ARE CERTAIN
THE APPLICANT HAS COMMITTED FRAUD OR MISREPRESENTATION.
BUT THE FACTS DO NOT QUITE MEET THE CRITERIA FOR
212(A)(6)(C). P(6)(C) DOES NOT/NOT SIGNIFY THAT AN
APPLICANT IS "ALMOST" OR "CLOSE TO" A FULL-FLEDGED
212(A)(6)(C). ON THE CONTRARY, P(6)(C) IS A LOOKOUT
CODE THAT INDICATES POST HAS INFORMATION ABOUT THE
APPLICANT WHICH MIGHT RENDER HIM INELIGIBLE UNDER
212(A)(6)(C) IF HE APPLIES FOR A VISA IN THE FUTURE.
MOREOVER. LOOKOUTS (P QUASI REFUSALS. L. N. SL. AND 42
ENTRIES) ARE NOT COUNTED AS POST OR OFFICER REFUSALS AND
ARE NOT REFLECTED IN WORKLOAD STATISTICS AS CASES
WORKED.

OVERSTAYS ARE NOT ALL 212(A)(6)(C)

12. ASSUMING THAT APPLICANTS MISREPRESENTED THEIR

INTENTIONS AT THE TIME OF THE INTERVIEW. SOME POSTS
ENTER ALL OVERSTAYS. TURN-AROUNDS. AND ALIENS WHO HAVE
APPLIED FOR CHANGE OF STATUS AS 212(A)(6XC). AS A

128
 GENERAL RULE, POSTS SHOULD NOT ENTER 212(A)(6)(C)S INTO
CLASS ABSENT AN ACTUAL ADJUDICATION. POSTS CAN ONLY
MAKE INELIGIBILITY DETERMINATIONS IN THE CONTEXT OF VISA
APPLICATIONS OR REVOCATIONS. POSTS SHOULD BE AWARE THAT
ONCE THE ALIEN HAS ENTERED THE U.S.. H€ IS UNDER THE
JURISDICTION OF THE INS. AT THAT POINT. A 212(A)(6KC)
FINDING WILL BE UNLIKELY TO HAVE ANY PRACTICAL EFFECT ON
THE ALIEN AND WILL RARELY BE WORTH THE POST AND
DEPARTMENT RESOURCES REQUIRED FOR SUCH A FINDING. POST
SHOULD RESERVE ACTION FOR ONLY THOSE CASES IN WHICH THE
ALIEN IS LIKELY TO LEAVE THE U.S. AND ATTEMPT TO REUSE
THE VISA OR REAPPLY FOR A NEW VISA.

13. THE DEPARTMENT ENCOURAGES OFFICERS TO USE 214(6) TO

ITS FULL POTENTIAL AS AN EFFECTIVE AND EXPEDIENT GROUNDS
OF REFUSAL AND ANTI-FRAUD TOOL. RESERVE 212(A)(6XC)
DETERMINATIONS FOR ONLY THOSE CASES THAT MEET THE
CRITERIA OF 9 FAM 40.63. WHICH ARE ALSO DESCRIBED IN
REFTEL
ALBRIGHT
BT
#8476

NNNN

129