I’VE had numerous consultations over the years with people who went for their visa interview at the U.S. Embassy, only to be told they are guilty of fraud/misrepresentation, and therefore, not eligible for a visa. Many state that they were not even given a chance to explain or document their innocence. They were simply given a single sheet of paper with the item checked that they committed fraud/misrepresentation, and, in some cases, may be eligible for a waiver (or forgiveness).
However, the Foreign Affairs Manual (FAM), which is the regulations followed by the Embassy in connection with visa processing and issuance, specifically instruct consuls, “You must give the alien the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.”
This means that before being formally charged with fraud or misrepresentation, a person is supposed to first be given the opportunity to rebut the presumption of fraud or prove they had committed no fraud by presenting documents, evidence, and legal arguments demonstrating their innocence and eligibility for a visa.
However, if a person is truly guilty of fraud, was caught, and was properly charged with fraud (because they entered the U.S. on an assumed name, claimed to be single when they were secretly married, and submitted altered or bogus documents from Recto Street, etc.), they would need to file a fraud waiver, if they have a spouse or parent who is a U.S. citizen or is a green card holder.
If you will be interviewed at the Embassy, or even at USCIS, and you have potential issues about your eligibility, you should seek the advice and assistance of an attorney, who can evaluate your case and possibly represent you and help explain or resolve those issues.
If you have been charged with fraud, but believe it was a mistake or misunderstanding, you should also seek the assistance of an attorney, who can assist you in proving your innocence by rebutting the presumption of willful misrepresentation.
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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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