Definition of misrepresentation

Hello,

Going across the border last month, I was charged with Fraud/Misrepresentation because I’d misrepresented the fact that I’d overstayed my tourist visa by 2 months in the past.

After doing some research, I found out it’s only a "material fact" if disclosing the truth would have made me inadmissible (such as if I'd overstayed by 6 months, if I'd had a criminal record, etc.)

In my case, it wasn’t a material fact because there are no clear rules about overstaying by only 2 months.

If it wasn’t a material fact, then misrepresenting it would not make me inadmissible for fraud/misrep, right?



PS: As a sidenote, lying at the border was definitely the dumbest thing I have ever done, and I would recommend to everyone on this forum - NEVER LIE to an agent ABOUT ANYTHING.

Going across the border last month, I was charged with Fraud/Misrepresentation because I’d misrepresented the fact that I’d overstayed my tourist visa by 2 months in the past.

More details about the previous 2 month overstay might help. During that trip, were you given an I-94 card? How was the 2 months measured? Was it 2 months after the expiration of an I-94 that you left? Was there no I-94 but you stayed 2 months after you verbally said you'd be leaving? Were you granted the maximum 6 months without an I-94 and then stayed 8 months?

After doing some research, I found out it’s only a "material fact" if disclosing the truth would have made me inadmissible (such as if I'd overstayed by 6 months, if I'd had a criminal record, etc.)

I'm no lawyer, but I find it hard to believe this is the legal definition of a "material fact". If someone, for example, enters with a stolen passport (perhaps intending to commit identity theft), then their lie about their name is surely a "material fact"--even if they have a valid passport of their own and could have gotten in by telling the truth.

In my case, it wasn’t a material fact because there are no clear rules about overstaying by only 2 months.

Firstly--if you got an I-94 then an overstay counts towards your lifetime limit before you trigger a bar, so it's material even if you haven't been barred formally yet.

Secondly, regardless of whether your previous visit was legally an "overstay" or not, your past pattern of coming and going from the USA is certainly something that the officer can take into account when making a decision about a new entry. A 2 month discrepancy might well be material to an officer. OTOH a 2 day discrepancy might simply be an honest failure to remember perfectly and might not be worthy of being considered "material".

If it wasn’t a material fact, then misrepresenting it would not make me inadmissible for fraud/misrep, right?

Your movements over a 2 month time period are almost certainly "material". I believe a "material fact" is one that might affect a decision. Clearly a 2 month time period is long enough that an officer is going to want to know where you were for that 2 months.

We probably need more material facts to decide

PS: As a sidenote, lying at the border was definitely the dumbest thing I have ever done, and I would recommend to everyone on this forum - NEVER LIE to an agent ABOUT ANYTHING.

Sadly, I have to agree. Also the fact that you acknowledge you were lying--as opposed to simply confused--is pretty strong evidence that it was a "material fact". If the fact weren't material, you wouldn't have felt the need to deliberately lie. Good luck!

I was never given an I-94 card.

I’d verbally agreed to leave but unexpectedly stayed for another two months. Didn’t even realize I’d overstayed until I was at the border, then half-heartedly said I had left two months before I actually did and they caught me. But it really wasn’t a calculated lie…

If I had told the truth, it is not clear whether they would have let me in or not.

I was never given an I-94 card.

I’d verbally agreed to leave but unexpectedly stayed for another two months.

If you told the truth during the previous entry but merely left 2 months later than expected (but within 6 months total), it is not that big a deal. That is not considered an overstay.

Didn’t even realize I’d overstayed until I was at the border, then half-heartedly said I had left two months before I actually did and they caught me. But it really wasn’t a calculated lie…

The bigger issue is that it DOES look like a calculated lie, even if it wasn't intended to be. You may not have known it was an overstay because, in fact, it may not have been an overstay. But the question then arises, if you were completely comfortable in your own skin re the previous visit, why you felt the need to give an inaccurate departure date.

I think the major issue here is that you didn't tell the truth about the previous departure date--not an "overstay". It's very hard to see how a 2 month discrepancy would not be considered "material" although you may be able to go for the waiver as I think you were advised earlier.

Thanks Cal.

Do you know how long I should wait before even bothering to apply for the waiver? It's a lot of money, so I wouldn't want to apply if I didn't have a chance...

Do you know how long I should wait before even bothering to apply for the waiver? It's a lot of money, so I wouldn't want to apply if I didn't have a chance...

Unfortunately I don't feel qualified to answer that question. You might want to try to find an attorney who can offer you a free consultation. You might also try researching waivers at the following site:

http://uswaiver.blogspot.com/

They seem primarily focused on criminal waivers at that site, and that is not your situation--you need a fraud waiver--but maybe they can point you in the right direction. Also I believe that I-212 and I-192 can be filed simultaneously rather than consecutively as LAWS suggested. The advantage in filing simultaneously would be that total processing time would be less; the disadvantage, of course, is that if either or both are denied, you'll lose both fees.

My take on this as a layman with considerable experience in dealing with these folks: The good news is that I don't think your earlier stay was technically an overstay, and you might be able to make a case that during your later attempted entry, you were simply under considerable stress rather than blatantly lying.

The bad news is that I think it would be a pretty tough sell trying to claim that a 2-month discrepancy isn't "material".

Whether the good news would be enough to overcome the bad news, I do not know. My best guess would be that it will. Most people seem to eventually get their waivers--the main problem with needing a waiver seems to be that it costs money, inconvenience, and an unpredictable amount of time.

Cal - thanks for the information. Fingers crossed...