Chapter 4 - Exemptions, Exceptions, and Waivers

A. Applicability

This ground of inadmissibility applies to any alien seeking a benefit for which admissibility is required, unless the alien is exempt from this ground. This includes any alien seeking admission to the United States at a U.S. port of entry, any alien seeking a nonimmigrant or immigrant visa with the U.S. Department of State at a U.S. embassy or consulate outside of the United States, or any alien seeking adjustment of status.^[1]

B. Exemptions

Congress determined that certain immigrant categories are exempt from the false claim to U.S. citizenship ground of inadmissibility. INA 212(a)(6)(C)(ii) does not apply to:

• Special immigrant juveniles seeking adjustment of status;^[2] and
• Applicants for registry.^[3]

C. Exception^[4]

In 2000, Congress added a narrow statutory exception to inadmissibility for false claim to U.S. citizenship.^[5] Congress made the exception apply retroactively.

The exception only applies to false claims to U.S. citizenship made on or after September 30, 1996, if the applicant satisfies the following requirements:

• Each parent of the applicant (or each adoptive parent in case of an adopted child) is or was a U.S. citizen, whether by birth or naturalization;
• The applicant permanently resided in the United States prior to attaining the age of 16; and
• The applicant reasonably believed at the time of the representation that he or she was a U.S. citizen.

Each of the applicant’s parents had to be a U.S. citizen at the time of the false claim to U.S. citizenship to meet the first requirement of this exception.^[6]

There are no exceptions in the statute based solely on an applicant’s age or mental capacity at the time of the false claim to U.S. citizenship.^[7]

D. Waivers

There is no waiver of the false claim ground of inadmissibility under INA 212. However, Congress authorized waivers of inadmissibility for this ground for aliens seeking adjustment of status for the following immigrant categories:

• Refugees;^[8]
• Asylees;^[9]
• Victims of trafficking;^[10] and
• Legalization.^[11]

Nonimmigrants who are inadmissible under the false claim ground of inadmissibility may seek a nonimmigrant waiver of the inadmissibility.^[12]

Footnotes 

[^ 1] See INA 212(a)(6)(C)(ii).

[^ 2] See INA 245(h)(2)(A).

[^ 3] Registry is a section of immigration law that enables certain aliens who have been present in the United States since January 1, 1972, the ability to apply for lawful permanent residence even if currently in the United States unlawfully. See INA 249. See 8 CFR 249.

[^ 4] See INA 212(a)(6)(C)(ii)(II).

[^ 5] See Section 201(b) of the Child Citizenship Act of 2000 (CCA), Pub. L. 106-395 (PDF), 114 Stat. 1631, 1633 (October 30, 2000).

[^ 6] See INA 212(a)(6)(C)(ii)(II).

[^ 7] See INA 212(a)(6)(C)(ii). See Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). Although the BIA did not specifically address age or mental capacity in Matter of Zhang, 27 I&N Dec. 569, 571 n.4 (BIA 2019), all prior DHS guidance, memos, and opinions that provided a defense to inadmissibility based on knowledge, age, or mental capacity are superseded by Matter of Zhang, including the December 6, 2012 DHS Office of General Counsel memo “False Citizenship Claims by Children: Knowledge and Legal Capacity Elements.” USCIS applies the precedent decision, Matter of Zhang, to all pending adjustment of status applications, including those in which the false claim predates the decision.

[^ 8] See INA 209(c).

[^ 9] See INA 209(c).

[^ 10] See INA 245(l)(2)(B).

[^ 11] See INA 245A(d)(2)(B)(i).

[^ 12] See INA 212(d)(3)(A).