9 FAM 40.63 N12 INA 212(a)(6)(C)(ii) Not Retroactive(TL:VISA-313; 08-27-2001) The provisions of INA 212(a)(6)(C)(ii) are not retroactive. It applies onlyto aliens who have made false representation on or after September 30,1996. An alien who has attempted or achieved entry to the United Statesbefore September 30, 1996, on a false claim of U.S. citizenship is not ineli-gible under the terms of INA 212(a)(6)(C)(ii). They are, however, ineligibleunder 212(a)(6)(C)(i), provided, such claim was made before a U.S. Gov-ernment official. This is a significant difference because the waiver provi-sions of INA 212(a)(6)(C)(iii) apply to aliens ineligible under (6)(C)(i), butnot to alien inadmissible under (6)(C)(ii). [See 9 FAM 40.63 N9]. 9 FAM 40.63 N13 Scope of INA 212(a)(6)(C)(ii)(TL:VISA-313; 08-27-2001)The provisions of INA 212(a)(6)(C)(ii) expand the scope of the ineligibil-ity related to false claims to U.S. citizenship. Ineligibility under (6)(C)(ii) ap-plies not only to an alien who makes false claims to U.S. citizenship in or-der to obtain a U.S. passport, entry into the United States, or other docu-mentation or benefit under the INA, (provided such claim was made beforea U.S. Government official), but also applies to an alien who made falseclaims to U.S. citizenship for any purpose or benefit under any other federalor state law. For example, an alien who made a false claim to U.S. citizen-ship to obtain welfare benefits or for the purpose of voting in a federal orstate elections would be ineligible under INA 212(a)(6)(C)(ii). [See also 9FAM 40.104 regarding unlawful voters.9 FAM 40.63 N14 False Claims to U.S. Citizenship UnderINA 274A(TL:VISA-313; 08-27-2001)INA 212(a)(6)(C)(ii) also applies for the purposes of INA 274A, whichmakes it unlawful to hire an alien who is not authorized to work in theUnited States. Thus, an alien who makes false claims to U.S. citizenship tosecure employment in violation of INA 274A would be ineligible under INA212(a)(6)(C)(ii).
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9 FAM 40.63 Notes Page 20 of 219 FAM 40.63 N15 Citizenship Claims Made to OtherThan U.S. Government Officials(TL:VISA-313; 08-27-2001)There is nothing in the language of INA 212(a)(6)(C)(ii) that would re-quire that the false claim to U.S. citizenship be made to a U.S. official im-plementing the provisions of the INA. INA 212(a)(6)(C)(ii) specifically says"under this Act or other Federal or State law". Thus, the language presup-poses that the false claim may have been made to a State or Federal Gov-ernment official outside the Department of State or the INS, or even to aprospective employer to circumvent INA 274A.9 FAM 40.63 N16 Waiver or Exception for 212(a)(6)(C)Ineligibility9 FAM 40.63 N16.2 INA 212(d)(3)(A) Waiver for Nonimmigrants (TL:VISA-313; 08-27-2001)A consular officer may, in his or her discretion, recommend that INSgrant a waiver under INA 212(d)(3)(A) for an alien ineligible under eitherINA 212(a)(6)(C)(i) or (ii) provided the alien meets the criteria specified in 9FAM 40.301 N2. 9 FAM 40.63 N16.3 INA 212(i) Waiver for Immigrants(TL:VISA-313; 08-27-2001)a. An alien who is ineligible under provision (i) of INA 212(a)(6)(C) mayseek a waiver under INA 212(i) if

1) The alien is the spouse, son, or daughter of a U.S. citizen or a law-ful resident alien; and(2) The Attorney General is satisfied that the refusal of the alien's ad-mission to the United States would result in extreme hardship to the U.S.citizen or lawful resident spouse or parent of such alien.b. Consular officers should note that INA 212(i), as amended by Pub.L. 104-208, eliminated the waiver for the parents of a U.S. citizen or lawfulresident alien and no longer permits a waiver for misrepresentations whichoccurred 10 or more years ago.
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9 FAM 40.63 Notes Page 21 of 219 FAM 40.63 N16.4 Alien Ineligible Under INA 212(a)(6)(C)(ii) 9 FAM 40.63 N16.4-1 Exception from Ineligibility Under INA 212(a)(6)(C)(ii)(TL:VISA-313; 08-27-2001)The Child Citizenship Act of 2000 (sec. 201(b) of Pub. L. 106-395)added an exception for inadmissibility under INA 212(a)(6)(C)(ii) for analien who voted in violation of any Federal, State, or local constitutionalprovision, statute, ordinance, or regulation if

1) Each parent is or was a U.S. citizen by birth or naturalization; (2) The alien resided permanently in the United States prior to the ageof 16; and(3) The alien reasonably believed at the time of such violation that heor she was a U.S. citizen 9 FAM 40.63 N16.4-2 No Waiver for Inadmissibility Under INA212(a)(6)(C)(ii)(TL:VISA-313; 08-27-2001)There is no waiver available for an alien ineligible under INA212(a)(6)(C)(ii). Given the different waiver rules, it is critical that consularofficers ensure that a false claim to U.S. citizenship has been properlycategorized. If a consular officer has any doubt regarding an alien's ineligi-bility under INA 212(a)(6)(C)(ii), the consular officer should refer the case tothe Department (CA/VO/L/A) for an advisory opinion.