5 Years? 10? 20? How Far Back Will a Consular Officer Look for a Misrepresentation or Alien Smuggling?

Posted on December 8, 2021

People thought that with the passing of the Trump Administration, Department of State visa policies would become more tempered and that enforcement would moderate from the Trump-era extremes. People, unfortunately, could not have been more wrong.

Statutes of limitations exist for good reason: due process, basic fairness, evidence that becomes stale over the years, the disappearance or death of witnesses, fading memories, and to prevent inconsistent decisions. But as discussed in a previous blog, there is no statute of limitations in visa law. And so consular officers are free to go back and review previous visa applications and time spent in the United States to determine whether a misrepresentation (Section 212(a)(6)(C)(i)) had been made at the time of the visa application or at the time of entry to the United States, or whether the individual had engaged in alien smuggling (Section 212(a)(6)(E)). Critically, this holds true whether a consular officer had already issued a visa after the alleged violation or whether the individual had been denied under different sections of the Immigration and Nationality Act (INA).

For example, in 2012, Jane applied for and received a visa. She spent two months in the US, and returned home. After four months, she returned to the US using the same visa. After her relative became sick, she decided to help her, who compensated her for her assistance during the time she did. Jane returned home and her visa expired. 2 years later, she applied for a new visa to visit her friends in the United States. She was denied under Section 214(b) of the INA. A year later, she applied for a visa again and again was denied under Section 214(b).

In 2019, she met the man of her dreams, an American citizen. After they were married in her home country, he filed the I-130 petition and after it was approved, she recently attended an immigrant visa interview. At that interview, she was accused of making a misrepresentation and found inadmissible under Section 212(a)(6)(C)(i) — not for what she indicated in any visa application, but because she allegedly misrepresented the purpose of her second visit in 2012 to a Customs and Border Protection inspector. Specifically, the consular officer used the 30–60 Day Rule to presume that she had the preconceived intent to «work» at the time of her arrival to the US because the consul believed that she had assisted her sick relative for compensation within 2 months of her arrival. This, notwithstanding the standard 214(b) denials she had received after this visit. Unless she successfully challenges this decision, she will require an immigrant waiver in order to immigrate to the United States.

There are lots of lessons to be drawn here. One should never underestimate the importance of the visa interview: preparation is imperative. It always makes sense to save submitted visa application forms. Sometimes it can be helpful to undertake Freedom of Information Act requests. Don’t count on the availability or success of a waiver application; for example, parents of US citizens are not eligible for immigrant waiver for misrepresentations. Similarly, don’t count on the issuance of a visitor’s visa after an immigrant visa has been denied. For those leaving the US after an I-601A waiver approval for unlawful presence, think whether there are any skeletons in the closet that could make an appearance at an immigrant visa interview.

In short, the US visa environment around the world is not getting any better. And there truly is no time limitation on these cases — we have seen recent visa denials stem from events more than 20 years ago. If you would like to consult on your situation, feel free to contact us.

Tags: 212(a)(6)(C), 212(a)(6)(E), 214(b), Alien Smuggling, CBP, I-601, Immigrant Waiver, Misrepresentation, Visa Refusal, Waiver