False claim of citizenship

[frdm2b]

I'm devastated.

I'm a USC married to an out-of-status gentleman. He came here on a student visa, and after graduated, he received one yr of OPT then overstayed for 4 yrs.

In order to work and keep a roof over his head he claimed US citizenship on employment forms and taxes. He didn't realize that this was a felony, although he probably knew it was wrong. He paid his all his taxes and never voted or claimed any other benefits. (I'm sure that doesn't make a difference). He's currently unemployed.

We dated for 3 years, our marriage is legitimate, and we have been married for 4 months now. He was going to apply for his GC but the forms ask if he's ever knowingly committed a crime or claimed citizenship.

He's torn because he has no significant ties to his home country and we would be literally starting from scratch, with very little money. We are currently living paycheck to paycheck.

I just read that falsely claiming citizenship carries a lifetime ban as punishment.....and therein lies the dilemma. Be denied, deported and live in poverty or tick 'no'.

He's really beating himself up over this and for putting me through this. If he could do it over he definitely would not claim to be a USC, but it can't be undone.

Can USCIS easily find out he did this in his past? We can't afford a lawyer at the moment, I' afraid. Any help you can provide would be GREATLY APPRECIATED.

THANKS

 

[Concerned4us]

He lied about being a USC which is one of the worst possible things for US immigration. Get a lawyer! Your financial problems are of no consequence to US immigration; there are social service agencies that assist with immigration matters. If you are living paycheck to paycheck, how do you expect to fulfill the support obligations?

He should not lie again. Even if he were to get a GC or USC, those would be lost when his lies are detected.

You picked him; you married him; you thought that marrying someone who was illegally in the US was acceptable and should have known the consequences. You should be prepared to leave the country to live with him as he is subject to deportation and exclusion. He can start over elsewhere or be a criminal in the US if he does not leave.
There are no excuses accepted for these lies!!!!!

(I cannot understand why people do this to themselves! He had the educational qualifications for H1B yet decided to violate US laws rather than make the proper effort to remain legally. On top of that, he falsely claimed to be a USC putting his employer at risk of action for hiring someone not entitled to work in the US. The consequences are severe for a reason.)

 

[Triple Citizen]

So in the last 4 years (plus time spent as a student), all ties (social, family, friends, childhood, etc) to his country of birth evaporated? May I know what country this is?

He's torn because he has no significant ties to his home country

 

[frdm2b]

So in the last 4 years (plus time spent as a student), all ties (social, family, friends, childhood, etc) to his country of birth evaporated? May I know what country this is?

He's Kenyan. What I should have said was that we would be starting over on our own without help from people there - he does have childhood friends and some extended family there that he hasn't seen in about a decade. We do fulfill the support obligations, we are still stretched thin however. A while back we had a consultation with a lawyer who said she'd charge $4000. Is that higher than most people are paying in the DC, MD VA area?

 

[CaViCcHi]

If he was working with the SSN given to him at the time of the OPT, is directly traceable to his alien #... so even if you want... you can't lie... unless you want to get a ride on the "stolen identity" train... which I don't reccomend... since I'm sure that the employer won't back him up...

the only one is to tell the truth... but the consequences will be bad anyway... or alternative... keep on going as you are right now... but remember that everything can end at anytime... :/ sorry

 

[frdm2b]

Thanks for your responses. I truly appreciate it.

If he admits the truth, is it an automatic disqualification or can he be 'forgiven'?

Am I being ripped off by a lawyer who wants to charge us $4K or is that reasonable?

 

[CaViCcHi]

Thanks for your responses. I truly appreciate it.

If he admits the truth, is it an automatic disqualification or can he be 'forgiven'?

Am I being ripped off by a lawyer who wants to charge us $4K or is that reasonable?

Well before getting on track understand what he's trying to do... maybe consult with another lawyer... there's nothing bad in shopping around for lawyers... 4k for the whole process? even USCIS' fees?

 

[frdm2b]

Well before getting on track understand what he's trying to do... maybe consult with another lawyer... there's nothing bad in shopping around for lawyers... 4k for the whole process? even USCIS' fees?

The lawyer knew he'd worked illegally and said it wouldn't a problem getting his GC . We didn't discuss the false claim to citizenship at the time, not knowing how serious it was at the time.

$4K + USCIS fees. The lawyer claims to have 16yrs experience & teach immigration law. I'm worried about the "you get what you pay for" situation if I get someone cheaper.....maybe I just answered my own question.

 

[CaViCcHi]

wait... you need to tell him about that stuff!! otherwise he can't have the big picture... that's something pretty big :|

 

[frdm2b]

Yes, we definitely need to discuss our options further. Saving up the $200 to have another sit-down with her.

 

[kaylee]

Damn, why are people so judgmental? Beats me how when someone asks a question everyone just attacks her/him and and wonder why the person committed such an illegal act. Obviously if her husband knew the implications of his actions, he wouldn't have done so. You do not know if he was in a situation where he had to get a job and this was his last resort to get food in his mouth. There are worse things that claiming citizenship on an I-9 but reading you guys looks like the man is a serial killer of some sort. Geez give him a break! Unless you walk in someone's shoes do not judge them. Answer the OP's questions regarding the immigration matter, not the actions of her husband. My 2cents!!!


FRDM2B, I live in the MD/VA/DC area and I have been able to get quick questions answered by lawyers over the phone by just googling immigration lawyer and calling a few. Some will answer your questions, some will ask that you pay a fee so its a hit or miss. You will have to try a few soemetimes to get an answer but hey you don't have anything to lose.

As far as the claim of citizenship on I-9 , it is not as black and white as the previous people have made it seem. One, you will have to find out when he made that claim. 2, there is a legal difference between claiming to be a US citizen or a US National and the I-9 asks for US Citizen or National and there was a case where the judge has ruled against USCIS determining that the petitioner claimed ot be a US National not a US CITIZEN, you can read about it here :
http://www.nilc.org/immsemplymnt/ircaempverif/irca058.htm

Another opinion here :
http://www.avvo.com/legal-answers/false-claim-of-us-citizenship-and-245i--270761.html

And here:

USC Claims & Form I-9
The false USC claim issue has most commonly arisen where the foreign national misrepresented his status on Form I-9 to gain employment by checking Box 1, thereby attesting under penalty of perjury that he is “A citizen or national of the United States” (emphasis added). This is a common occurrence because employers are generally prohibited from requesting further documentation from the prospective employee once documentation of his identity and right to accept employment (most typically a state-issued driver’s license and social security card) have been presented.

The most common defense to cases arising under this scenario has focused on the ambiguous nature of the Form I-9 attestation and whether the person has in fact falsely claimed to be a U.S. citizen, a U.S. national, or something else. In that regard, it is critical to note that INA §212(a)(6)(C)(ii) punishes only false USC claims, not false claims to U.S. nationality.11 As such, attorneys have argued that since it is unclear whether the person was claiming to be a U.S. citizen or U.S. national, a false USC claim has not been made absent clear evidence to the contrary. Related arguments to refute false USC allegations include the fact that the terms “citizen” and “national” are commonly used interchangeably by U.S. immigration officials and attorneys, and are accordingly ambiguous and/or vague;12 that in the vast majority of cases, where only a driver’s license and social security card were presented in support of Form I-9 (as opposed to a U.S. passport or birth certificate), it is impossible to determine what status the person was claiming; and that due to the draconian impact of the false USC statute, any ambiguity should be resolved in favor of the alien (commonly referred to as the “rule of lenity”).13

Indeed, up until the recent series of 8th Circuit decisions, various legal authority from the United States Citizenship and Immigration Services (USCIS),14 the Board of Immigration Appeals,15 and the courts16 clearly recognized the “citizen/national” ambiguity as a valid defense in many cases involving alleged false USC claims on I-9 forms. Further, the 8th Circuit’s Ateka decision specifically recognized the citizen/national distinction and held that, due to the ambiguous nature of the form, for an alien to be inadmissible there must have been independent corroborating evidence showing that he intended to claim U.S. citizenship. In Ateka, the foreign national had testified to an immigration officer during his adjustment-of-status interview that he had falsely claimed to be a U.S. citizen when completing various I-9 forms to gain employment. His application for adjustment of status was thus denied due to the false USC claim and he was placed in removal proceedings, where he renewed the application before the immigration court. Although he argued that his actions (merely checking the ambiguous Box 1 on Form I-9) did not constitute a false USC claim, the immigration judge, Board of Immigration Appeals, and Court of Appeals each ruled that his prior testimony to the immigration officer stating that he had claimed to be a U.S. citizen to gain employment provided independent corroboration of his intent.

http://www.mnbar.org/benchandbar/2009/feb09/citizen.html

so all is not lost. Good luck to you

 

[praxx]

so all is not lost. Good luck to you

If you look at the current I-9 you will notice that Citizen and National are now separate boxes. OP said her husband checked Citizen. There are only two rays of hope. First that the I-9 was filled out more than 3 years ago and has now been destroyed. Second that the I-9 forms in their office were xeroxes from the early 1990s where Citizen and National had the same checkbox. I have started some thorough research on this topic since it also affects me and while I agree with most of what you said and linked to there are these two twists that OP definately needs to consider. Sadly, a $200/hr lawyer should have told them that(and more) instantly.

 

[Jackolantern]

First that the I-9 was filled out more than 3 years ago and has now been destroyed.

Not necessarily; employers have the option to keep the I-9 longer than the minimum if they want to.

Second that the I-9 forms in their office were xeroxes from the early 1990s where Citizen and National had the same checkbox.

I have an I-9 from 2008 (rev. 06/16/08, expires 6/30/09) that still had the US Citizen and US National with the same checkbox. So it is not necessary to go back to the late 1990s for that shared checkbox. They didn't separate the checkboxes until 2009. So technically, according to the legal arguments kaylee quoted above, if all his I-9's had the shared checkbox, or if he selected "US National" on the updated version of the I-9, he could answer NO to the claiming US citizenship question if there is no other incident of him claiming to specifically be a US citizen.

 

[frdm2b]

@Kaylee: Thanks for your kind words

He doesn't remember whether the USC/US national checkbox was in one or two lines...He started his last job in '08 so they probably weren't separated yet.
I wonder if he can contact them for his tax forms without raising suspicion. Too risky?
Does the IRS keep a copy of his filled out 1-9 form? Because if they do, it won't matter if his job destroyed the paperwork.

Thanks very much for all your ideas, I'm starting to see a ray of hope in this.

 

[Jackolantern]

@Kaylee: Thanks for your kind words

He doesn't remember whether the USC/US national checkbox was in one or two lines...He started his last job in '08 so they probably weren't separated yet.

They weren't separated in 2008. They first started the separation of those checkboxes in 2009. I have attached the 6/16/2008 revision and the 2/2/09 revision.

I wonder if he can contact them for his tax forms without raising suspicion.

That would be useless. I-9 is not part of the tax records.

Does the IRS keep a copy of his filled out 1-9 form?

The IRS doesn't. However, if ICE audited the employer, they may have taken copies of some of the I-9's.

 

[frdm2b]

Thanks, very helpful.
He stopped working because the business was collapsing as a result of the economic crash and a lot of people were let go. The business is looking to be sold and may have since been audited in the process....I don't know.

 

[kaylee]

frdm2b,
I think he has a shot. He should just answer No to that question, more than likely they used the old version of the I-9. Having worked in HR myself I know it takes time for companies to update their systems, paperwork and such, especially when its not mandatory to do so. Also, from personal experience I know people who did check that box on their I-9 and still got their green card fine without any issues. The thing is at the interview, if asked if he had ever claimed to be a US citizen, he should say No. Good luck

 

[frdm2b]

Thanks,
Is it likely that just the fact that he worked and will provide a work history will raise questions? That it would indicate that he misrepresented himself.

 

[Jackolantern]

Thanks,
Is it likely that just the fact that he worked and will provide a work history will raise questions? That it would indicate that he misrepresented himself.

It might raise questions, but unauthorized employment is forgiven for spouses of US citizens who file for AOS, provided they entered the US legally.

 

[frdm2b]

Ok, that's reassuring.
I spoke to a lawyer briefly as I was shopping around and he said that it's 'the way that it's presented' in the USCIS forms.
It was probably his way of getting me to hire him, but I need a lawyer regardless, because we'll only have one shot at this.