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A jack-in-the box is a toy that, when opened, springs a figure – usually a clown – out of the box suddenly. This figure has come to mind a lot lately as more and more visa applicants learn for the first time that they have been permanently barred from the United States based on some government database red flag. Often, the applicants have nothing in their background to indicate any visa problems and have been traveling to the US for years. So when the consul springs Section 212(a)(6)(C)(i) misrepresentation, 212(a)(3)(A)(i) unlawful activity, 212(a)(6)(E) smuggling, or 212(a)(2)(C)(i) trafficking finding on the applicant, the applicant is left with shock, confusion, and a permanent bar – and sometimes without the possibility of a waiver.

The good news is that these flags are often correctable mistakes. Sometimes the consul will point the finger at USCIS as the source of the finding of inadmissibility – particularly in 212(a)(6)(C)(i) decisions. But USCIS never made such a decision – or if it did, did not tell the petitioner. Perhaps USCIS denied a work (e.g., H-1B, L-1, O-1) or immigrant (e.g., spousal, parental, and family immigration, EB-1A, EB-2 National Interest Waiver, EB-3, EB-5) petition, but not on grounds related to fraud or a willful, material misrepresentation. Before denying a petition, it will almost always issue a Request for Evidence or a Notice of Intent to Deny. By law, USCIS is supposed to confront the petitioner with “derogatory information” that can lead to a 212(a)(6)(C)(i) decision. Sometimes after receiving a response to the RFE or NOID, USCIS will withdraw an allegation of misrepresentation that was contained in the RFE or NOID. When making a 212(a)(6)(C)(i) final decision, USCIS is required to indicate that in its decision.

Webster’s defines “going rogue” as “to behave in an independent or uncontrolled way that is not authorized, normal, or expected.” “Isolated, aberrant, dangerous, or uncontrollable” are other synonyms associated with rogue. But what happens when “going rogue” begins to happen so often that it becomes normalized, part of the status quo, almost expected? Well, that does not mean that such action is lawful. In the context of applying for a visa or entering the US, you have rights to ensure that “rogue” misconduct by a US consular officer of CBP inspector does not turn your life upside down.

To be clear, sometimes consular or customs interrogations are indeed warranted; for example, when there are legitimate concerns about illegal work, OPT violations, H-1B violations, fraud, misrepresentations, drug use, Wilberforce Act violations, or human smuggling. But other times, these visa and airport interviews are little more than fishing expeditions based on some nebulous suspicions or profiling. Sometimes, the consuls or airport inspectors conducting these interviews are new, inexperienced, incompetent, lack supervision, or simply on a “power trip.”

That is the question that consuls are greeting nonimmigrant and immigrant visa applicants with at their interviews – no matter how many years ago the incident took place. If the answer to the question about when the work started is 3 months or less, the consuls are making 212(a)(6)(C)(i) misrepresentation decisions on the spot. The consul’s accusation? When you entered the US, you lied to the airport or port inspector about the purpose of your visit – you said “tourism” or “to visit a friend” or to “visit a relative,” but because you started working within 90 days of your arrival, the consul presumes that your true intention at the time of your arrival was to work.

With the arrival of Trump, the US consulates are becoming more and more aggressive in applying the 90 Day Rule. Ciudad Juarez? Check. Buenos Aires? Check. San Jose? Check. Just in the past couple of months, we have seen these decisions from these consular posts, even for applicants who just returned to the home country to apply for an immigrant visa after having an approved I-601A waiver for spending years in the US unlawfully. The consequences are particularly devastating for immigrant visa applicants applying to join their US citizen children in the US (Category IR-5). For them, there is no immigrant waiver available and because they have expressed an intent to immigrate, they will not obtain a nonimmigrant waiver for a long time. Similarly, the consequences are devastating for those applying for an employment-based immigrant visa. Usually, they do not have a “qualifying relative” in the US – either a spouse or parent who is a US citizen or green card holder – and so are not eligible for an immigrant waiver. Even when an immigrant waiver is available, it is now taking nearly 3 years to adjudicate I-601 immigrant waiver applications.

Listening to the bluster of the Trump Administration, one gets the impression that – legally – any person can be denied a visa JUST BECAUSE: just because their personal views are abhorrent to this Administration; just because they express those views publicly; just because they were involved in some traffic stop 15 years ago. But here’s the thing – that’s not true.

The Trump Administration may not like it, but it is subject to the law. The courts in the US have repeatedly handed the Administration loss after loss when it has tried to deport individuals on free speech and other questionable grounds.  But visa applicants outside the US do not have the US courts as a legal backstop: courts have bound themselves by the doctrine of consular non-reviewability – disempowering themselves from the review of visa denials. This means that no matter how ridiculous a visa refusal may be, courts generally will not get involved.

We always hear about sham K-1 fiancée and sham marriage relationship accusations from consular officers, but what about… sham divorces? In some countries, this is a “thing” – where a couple cannot receive some state benefit (e.g., reward of an apartment), but if the couple are divorced, then one of the pair is entitled to that benefit. Well, for US immigration purposes, this is also a “thing”: because married adult children of U.S. citizens (F3 immigration category) face significantly longer immigrant visa wait times than their unmarried counterparts (F1 immigration category), some consider a strategy that seems, on the surface, like a practical solution, particularly if there are children involved. The idea is to legally divorce in order to be classified as unmarried; immigrate more quickly under the F1 category and bring along any children; and then, after arrival in the United States as an immigrant, visit the home country, legally remarry, and petition for the spouse under the F2A immigration category. The lure is understandable – accelerating the immigration process for one spouse and the children - but the fraud is not.

As of August 2025, the Visa Bulletin shows that F1 applicants have a priority date cutoff around July 15, 2016, translating to approximately a nine-year wait, while F3 applicants face a cutoff of August 1, 2011, which amounts to about a fourteen-year wait. That five-year difference obviously can have a major impact, especially when young children are involved. Will they be spending those 5 years in the home country or in the United States? However, divorcing for the sole purpose of jumping into a faster-moving category is fraught with legal risk. U.S. immigration authorities have consistently considered “sham divorces” as fraud, and, in many cases, treat the couple as still married for immigration purposes.