If you have ever taken a salaried job in the U.S., you probably filled out a Form I-9. This form is commonly used by U.S. employers to confirm their employees’ eligibility, based on immigration status, to work in this country. For more information about Form I-9, see “What to Keep in Employee Personnel Files.”
Although the I-9 is a simple form that can usually be completed without outside help, foreign-born employees should take particular care to read the provided instructions, carefully review all the questions, and ensure that all answers they provide are truthful and accurate. The consequences of checking the wrong box on this form if you seek to apply for a green card in the future – particularly if you falsely check a box saying that you are a U.S. citizen -- can be dire and include removal from the United States.
On one part of Form I-9, the employee is supposed to check one of four boxes to show why he or she is eligible to work in the United States. Older versions of Form I-9 included a “citizen or national” box. The new version of Form I-9 splits “citizen or national” into two separate boxes: “citizen of the United States” and “noncitizen national of the United States”. Other choices include “lawful permanent resident” and “alien authorized to work.”
There is no “other” box. So, if you will be accepting a job with a U.S. employer, you will need to choose one of these four possibilities.
In their eagerness to get a job, many foreign-born, often undocumented persons simply check the box for either “citizen” or “national” on Form I-9. Unfortunately, they may not realize the eventual immigration consequences. Some of them may, one day, become eligible to apply for a green card, perhaps because an employer is willing to sponsor them, they’ve married a U.S. citizen, or some other reason.
But to qualify for a green card, you cannot be considered “inadmissible” to the United States. And there are many things that can make you “inadmissible,” including false claims to U.S. citizenship. (All of the grounds of inadmissibility are outlined in Inadmissibility: When the U.S. Can Keep You Out.)
More specifically, the Immigration and Nationality Act makes inadmissible any alien who “represents” or “has represented” that he or she is a U.S. citizen for “any purpose or benefit” under any state or federal law. The phrase “any purpose or benefit” is important because it makes this ground of inadmissibility very broad – meaning that it can cover many different situations. For example, if you have lied about being a U.S. citizen to work, vote, or receive public benefits, you are probably inadmissible and ineligible for a green card.
(To learn more about your possibilities for a green card and the process of applying for one when you are already in the U.S., called “adjustment of status,” see Adjustment of Status Procedures and Green Card Qualification.)
In some situations, waivers are available that allow an applicant who has been found inadmissible to receive a green card regardless. (If you’d like more information, see When Is a Waiver of Inadmissibility Available for a Green Card Applicant?)
But for inadmissibility based on a false claim to U.S. citizenship, no waiver is available. However, there are exceptions, as described next.
There are three situations where the "false claim" ground of inadmissibility might not even apply to you in the first place:
As mentioned above, lying about being a U.S. citizen in order to work is one of the ways in which a person can become inadmissible under this section of the law. But is just checking one box on a form really enough to count as a lie?
The answer is yes, according to the courts. For example, in a 2012 case called Crocock v. Holder, the immigration judge (IJ) had denied Mr. Crocock's green card application (which was based on marriage to a U.S. citizen) because he had made a false claim to citizenship by checking the “citizen or national” box on Form I-9 and was therefore inadmissible.
Crocock argued (on appeal to the federal court in the Second Circuit) that when he checked the “citizen or national” box, he was actually claiming to be a non-citizen national, and not a U.S. citizen. But the court ruled that the IJ's decision to deny the green card application was proper: that it is, the applicant has the responsibility to present enough evidence to show that he or she is admissible, and that Crocock did not present enough evidence to support his argument that he was claiming to be a national and not a citizen.
A federal court in the Eighth Circuit came to a similar decision in 2015, in a case called Etenyi v. Lynch. Here, the applicant claimed that when he was given the form, the box saying he was a citizen had already been filled in, along with other information, and he simply signed it. The court held that by signing it, he adopted its contents (especially given that he had a college education).
The lesson in this situation: Nonresidents should always be very careful when filling out any official U.S. government forms or immigration paperwork and consult a professional or an experienced attorney if necessary. A simple mistake on Form I-9 or any other government form might be considered a false claim to citizenship that could prevent you from getting a green card.