T5 B65 Gao Visa Docs 6 Of 6 Fdr- Jun 99 Dos Cable- Fraud Ineligibilities 835

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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 TIMECONSUMING 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

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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

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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

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