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Suspicions of going to work illegally? Check. Suspicions of marrying a US citizen? Check. Suspicions of remaining in the US? Check. These are all common reasons for the inspector of Customs and Border Protection at an airport or a land border port-of-entry to invoke Section 212(a)(7)(A)(i)(I), denying their entry, and sending the person home. But criticizing the President of the United States? This is as American as apple pie; this is the Land of Free Speech, after all, right? Right? Apparently not in the eyes of CBP inspectors who have just stopped the entry of a French scientist because CBP found text messages on his phone that apparently criticized the Trump administration’s policies on academic research. This not only bodes poorly for visa and ESTA holders over the next four years, but for visa applicants.

When one thinks of visas and visa processing, the first US government entities that come to mind are the embassies and consulates outside the United States. These embassies and consulates are under the domain of the Department of State; the visa officers that the applicant meets are employees of the Department of State. And it is true that the overwhelming majority of visa applications are resolved on-the-spot by these visa officers, called consuls. But with the proliferation of US government agencies and each agency having its finger in the “visa pie,” it is more and more likely that other agencies will be involved in the process, be it HSI, FBI, DOT, DEA. What are these abbreviations? What is this alphabet soup? And how do they impact the visa applicant? I am glad you asked.

Embedded inside many US embassies and consulates abroad are officers of Immigration and Customs Enforcement Homeland Security Investigations (ICE HSI). They screen more than 1 million visa applicants a year at 44 visa issuing posts in 29 countries as part of its Visa Security Program (VSP). This is a parallel apparatus working alongside consular officers. These agents are extremely active in conducting investigations and compiling reports on individuals, called ROIs – Reports of Investigation. They enter inadmissibility determinations to ensure that applicants do not receive visas. ICE HSI findings of misrepresentations (212(a)(6)(C)(i)), unlawful activity (212(a)(3)(A)(ii)), and terrorism (212(a)(3)(B)) are common.

For visa problems one should always try to resolve the issue with the embassy, consulate or State Department first. Visa applicants do indeed have rights. But once those rights or your patience have been exhausted, one may consider the possibility of a lawsuit.

The problem is that as a general rule, visa denials are not subject to judicial review under the doctrine of consular nonreviewability. This was recently reaffirmed by the Supreme Court in Muñoz v. Department of State. The onslaught of anti-immigrant actions and rhetoric by the Trump Administration can also be intimidating to visa applicants. But there are exceptions to the rule barring judicial review of visa cases and visa denials. Sometimes the mere filing of the lawsuit can impact the case. While this area of the law is fluid and unpredictable, courts have recognized some exceptions, including:

It is like a game of whack-a-mole: one OPT scam company is closed and another one opens; one is shut down, another one commences operations. By now foreign students should be aware of the existence of these scam companies, and those who have been victimized should understand that there may be a remedy.

As background, the roll call of companies implicated in the OPT scandal include AzTech, Integra, Wireclass, Andwill, Findream, Tellon Trading, Arecy, Sinocontech, Masswell, CG Max Design, Global IT Experts, Apex IT, and XCG Design. Our Freedom of Information Act request turned up more than 190 pages of US government information on AzTech alone, with nearly 2,000 foreign students from more than 20 countries and 70 universities associated with it alone. These scam companies generally followed the same template: they pretended to be real OPT employers, targeting foreign students who need to meet employment requirements. In exchange for fees paid in advance, these companies claimed to offer “OPT compliance:” “training,” “job placement,” and documentation confirming “employment.”

Having your approved petition sent back to USCIS because a consular officer suspects a sham marriage, relationship, or job offer is traumatic and tragic, particularly as many of those referrals are based on brief interviews and little evidence of a sham. The consequences can be devastating. Now, the Supreme Court has taken away one arrow in the quiver of petitioners in challenging such actions. It recently ruled in Bouarfa v. Mayorkas that federal courts lack jurisdiction to hear cases involving the revocation of the approvals of immigrant visa petitions. This means that the only recourse lies with USCIS and the Department of State, not the courts.

To understand the implications of this decision, consider a common example:

A U.S. citizen files an I-130 immigrant petition for their spouse, seeking to bring them to the United States as an immediate relative. USCIS approves the petition, and the spouse attends an immigrant visa interview at a U.S. embassy or consulate abroad. During the interview, however, the consular officer suspects that the marriage is not bona fide and refers the case back to USCIS for further review.