Can’t I Just Not Tell Them? What information really has to be provided to the government?

Ethical Matters  Attorneys cannot tell clients to provide false information to the government.  Attorneys cannot file any petition, application, inquiry, update, appeal, statement or other information to the government that the attorney knows to be false  The more likely the government is to find out the information, the more the attorneys want the client to provide the attorney with the information  Having the right information can cause the attorney to recommend a different course of action than he/she would recommend with the wrong information

Is it Ever Ok to Withhold Information? If the applicant is asked a direct question, my advice is always to answer the question truthfully. But …  Silence or failure to volunteer information is not misrepresentation.  When the answer to a question isn’t clear and negative information can be handled affirmatively or defensively, it helps to know how likely it is that the government will know anyway, e.g. an expunged conviction is likely to come up while a possible false claim of citizenship on an I-9 from ten years ago is not.  Overwhelming the attorney with unnecessary information can lead to errors, so it is helpful to know what’s really important and what’s not.  It can alleviate some of the stress of the process to know what information the government is less interested in.

Arrests If I don’t tell them, will they know if I.. Have been arrested? ALMOST ALWAYS  Method of investigation: fingerprints, name check and inter-governmental databases  Government interest: Very high  Arrests that have ‘fallen off’ police certificates may still appear in inter-government computers  Juvenile arrests and arrests without conviction may still appear on inter-government computers

9C If I don’t tell them, will they know if I … Left the country and came back? MAYBE  Method of investigation: Self-reported information, CBP Database  Government interest: Very high  Because the information is mostly self-reported, the method used to get the true information is to ask again and again and look for inconsistencies  If the information one provides is untrue, it is difficult to be consistent

Drugs If I don’t tell them, will they know if I.. Have taken drugs? ALMOST NEVER  Method of investigation: Self-reported information, indication of drug use on public records such as arrest record  Government interest: Low  Usually they only know if the applicant  Was arrested and the police report mentioned that the person was under the influence of drugs  Submits a divorce decree or custody decree mentions drug use  Tests positive for drugs during your immigration medical exam  Tells the doctor during the immigration medical that he/she taken drugs

Lied on I-9 If I don’t tell them, will they know if I.. Lied on my I-9? ALMOST NEVER  Method of investigation: Self-reported information, Employer audit/raid, Special request for I-9 from employer (unusual)  Government Interest: Low  Employers do not provide the I-9 to the government unless there is an “audit”  Employers are only required to hang on to the I-9 for the longer of:  One year following the employee’s departure from employment, or  Three years from the date the employee was hired

False Claim If I don’t tell them, will they know if I.. Have made a false claim of citizenship? PROBABLY NOT  Method of investigation: Self-reported information, CBP records, other public records, circumstantial information  Government Interest: Very high  Getting caught in the act usually involves a false claim at the time of entry into where border officials realize then and there that the claim is false  Inadvertent or contested “admissions” to a prior false claim usually involve a statement by the applicant that border officials allowed the applicant to enter the US without a visa  Possible false claims can be investigated if applicant received student loans  Rarely, the government will seek the I-9 form

Unfiled tax returns If I don’t tell them, will they know if I.. Have failed to file a tax return? ALMOST ALWAYS (IF RELEVANT)  Method of investigation: Applicant required to present the returns  Government Interest: High in some situations, Low in others  The applicant’s tax returns are usually critical to a Cancellation or Naturalization case and usually irrelevant to a Waiver case  If the tax situation has gotten so bad that the IRS has filed suit against the applicant, then it’s relevant to a waiver cas

Fake social security number If I don’t tell them, will they know if I.. Have been using a fake social security number? ALMOST NEVER  Method of investigation: Self-reported information, appears on tax return or pay stub, criminal charges for illegal use of a social  Government Interest: Low  At this time, unless criminal charges have been pressed for misuse of a social security number or a civil suit has been filed for similar reasons, the immigration authorities are looking the other way  The above could change at any time. And indeed there are a handful of scattered reports of this issue being brought up in some immigration cases  Generally speaking when the forms ask for a social security number, the government wants only a real number belonging to that person  If one supplies a document with a social security number, such as a tax return, then immigration authorities can’t look the other way

Behind in child support If I don’t tell them, will they know if I.. Am behind in child support payments? ALMOST ALWAYS (IF RELEVANT)  Method of investigation: Public records  Government Interest: High if there is a discretionary decision or moral character test, Low otherwise  Where it is relevant to the case, the government will look for this. If it’s not relevant, the government doesn’t care and won’t check.  Child support is relevant to any application where good moral character is a requirement such as Naturalization and any discretionary decision such as a Waiver or Cancellation.  Unless there is no written agreement or order for child support, immigration authorities can easily find out if the applicant is behind on payments in the US

Refusal of entry If I don’t tell them, will they know if I.. Was turned away at the border? PROBABLY  Method of investigation: Fingerprint check and name check through CBP database, self-reported information  Government Interest: High  Certainly if the applicant was fingerprinted, there’s a record. Sometimes applicants are fingerprinted and forget that part of the experience. Sometimes just the person’s name is put in the government computer and it shows up on a name check.  Sometimes getting turned away at the border is important to the case and sometimes it’s not. If it doesn’t matter, it would be silly to lie about it.

Gangs If I don’t tell them, will they know if I.. Was in a gang? PROBABLY (IF CONSULAR PROCESSING)  Method of investigation: Search for tattoos in medical exam, arrest records referring to possible gang membership, police databases of suspected gang members  Government Interest: Very high  Certain consulates are very interested in prior gang membership, while USCIS is less interested  Most of the time, gang membership is determined based on tattoos, especially on the hands or face  Prior gang membership can also be determined by police reports mentioning gang membership or possibly by suspected gang member databases maintained by local police offices in the US

Lied on DL application If I don’t tell them, will they know if I.. Lied on my driver license application? ALMOST NEVER  Method of investigation: Self-reported information, state records  Government Interest: Low  At this time the immigration authorities are not as a rule checking for false claims of citizenship in the driver license application  This unspoken, unwritten policy could change at any time

Unlawful employment If I don’t tell them, will they know if I.. Worked illegally? ALMOST ALWAYS  Method of investigation: Self-reported information  Government Interest: High if means you violated a lawful status, Low if you were already unlawfully present when it happened  If the person has been in the US for an extended period of time without any discernable means of support, the government will presume the person was working illegally  Unlawful employment is usually only an issue if it violated the terms of a visa or authorized stay. For those who entered without inspection, it doesn’t really matter.  For those applying for a visa abroad, the issue is not so much about whether the applicant worked illegally, but how soon after entering on a visa the applicant violated the terms by working. That date that employment commenced is usually self-reported.

Prior unlawful presence If I don’t tell them, will they know if I.. Was previously unlawfully present in the US? ALMOST ALWAYS  Method of investigation: Self-reported information, circumstantial information  Government Interest: High  The government always wants to know if the applicant was previously unlawfully present and will ask questions and perform research to get the information.  It is very difficult to live in the US without creating a paper trail such as a driver license.  For those entering and leaving by plane, usually there are stamps in the passport.  For those who are marrying a US citizen and will consular process, there will be questions about how well the applicant knows the US citizen and if the relationship has taken place in the US, the normal line of questioning is likely to reveal this. Same thing with employer sponsorship. How did the employer decide to hire this employee?

Prior marriages If I don’t tell them, will they know if I.. Was married before? PROBABLY  Method of investigation: Public records, interview community  Government Interest: Very High  The government is very interested in prior marriages for a variety of reasons  The US government will search public marriage records in foreign countries as well as in the US  When it is suspected that someone is concealing a prior marriage, consular officers will go in person to the applicant‘s village or section of the city and ask if the person is or has been married [I’ve had multiple cases where this occurred]