How Checking Citizen or National on Form I-9 Can Ruin Your Chance for a Green Card

If you have ever taken a salaried job in the U.S., you probably filled out a Form I-9. It 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 and 8 C.F.R. § 274a.2.

Although the I-9 is simple enough that it can usually be completed without outside help, foreign-born employees should take particular care to read the provided instructions, review all the questions, and ensure that their answers 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.

Your Choices on Form I-9

On one part of Form I-9, the employee is supposed to check a box to show why he or she is eligible to work in the United States. The choices include:

  • U.S. citizen
  • noncitizen national of the United States
  • U.S. lawful permanent resident (in other words, someone with a green card), and
  • an alien (foreign-born person) who is authorized to work in the U.S.

There is no “other” box. If you will be accepting a job with a U.S. employer, you will need to choose one of these four possibilities.

Lying About Being a Citizen Can Ruin Your Chances for a Green Card

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 might not realize the eventual immigration consequences. Some of them could, one day, become theoretically 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 many things can 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.)

No Waiver Is Available for a False Claim to U.S. Citizenship

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 when it comes to inadmissibility based on a false claim to U.S. citizenship, no waiver is available. However, there are exceptions, as described next.

Exceptions to a Finding of False Claims to U.S. Citizenship

There are three situations where the "false claim" ground of inadmissibility might not even apply to you in the first place:

  1. Your false claim was made before U.S. immigration laws changed. This ground of admissibility was not in effect until September 30, 1996 and was not made retroactive (that is, it doesn’t reach back into the past). Therefore, if you made the false claim to U.S. citizenship before this date in 1996, you could still be admissible to the U.S. (provided you didn’t make the false claim directly to a U.S. government official).
  2. You believed yourself (for numerous good reasons) to be a U.S. citizen. The Child Citizenship Act of 2000 created an exception to inadmissibility. If you were a minor when you made the false claim, you were living in the U.S. permanently (with a green card) before you turned 16, each of your parents was a citizen (by birth or naturalization), and there were good reasons for you to think that you, too, were a citizen, then you're okay.
  3. You corrected your error. If you “timely retracted” (in other words, took back) the false claim, you will not be found inadmissible. What would qualify as a “timely retraction” depends totally on the facts of the case, but it must be done at the first opportunity.

Yes, Checking a Box on Form I-9 Counts as a False Claim to U.S. Citizenship

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. 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'd 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 denying the green card was proper: that it is, the applicant has the responsibility to present enough evidence to show that he or she is admissible, and Crocock did not do so.

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 I-9 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: Foreign-born job seekers should always be 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 ever getting a green card.

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