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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.

I’ve beaten the dead horse on this one (sorry, dead horse), but really, truly, no kidding… there is no statute of limitations on a finding of a willful, material misrepresentation. Once such a decision is made, it is permanent unless it is removed (via a challenge/request for reconsideration) or waived. It does not go away. This is not some lawyer trying to sell you something, but the law.

I was reminded of this sad reality recently after a family reached out to me after they had attended an immigrant visa interview. The family – a father, mother, and two teenage children – had applied to immigrate through the father’s US citizen brother in the United States. Because of the quotas for the Family-Based Preference 4 Category (FB4), they had waited more than 15 years for the immigration process to play out. They were all excited about immigrating to the United States – legally and as permanent residents. But their excitement soon turned to horror when the consular officer confronted the father about a misrepresentation he had made 20 years ago. He had previously sought to immigrate as an individual in the Family-Based Preference 2B Category (F2B) category. The problem was that at that time, he had presented himself as single, when in fact he was married. That misrepresentation was material because he could not have immigrated if he was married in the F2B category. Apparently, he thought that the Section 212(a)(6)(C)(i) misrepresentation permanent bar would just go away – disappear, vanish, turn into a legal nullity, or that the consul would just “forget” – during the intervening years and that his second attempt to immigrate would be successful. Lo and behold – and unsurprisingly - that did not happen.

The Diversity Lottery program was created to diversify our immigrant population and give individuals the opportunity to immigrate who otherwise would not be eligible. No one can argue that the program has not achieved these objectives over the years, with hundreds of thousands of individuals and their families from around the world receiving green cards. But it has also been ravaged by scandal, usually provoked by overzealous, biased, or incompetent consular staff. The latest: consular staff at the US Embassy in Kenya, after collecting fees from DV-2024 winners from Somalia in September and causing them to incur thousands of dollars in expenses to travel to Kenya for their visa interviews, automatically denied them.

Recently, a report was published chronicling the number of foreign citizens found to be inadmissible to the United States. While much attention is given to the US-Mexico border, more than half of the 1.2 million inadmissibility findings for fiscal year 2024 relate to other ports of entry. One of the report’s most stunning findings relates to the exponential growth in the number of individuals who have withdrawn their application for entry: from about 50,000 in 2019 to nearly 200,000 in 2024. While the term “withdraw an application” sounds benign, it can be traumatic - with long-term consequences.

According to the report, the most common ports of entry for these findings of inadmissibility are in Buffalo, Seattle, and Boston. Chicago O’Hare is another airport with a reputation for having a rigorous enforcement mentality. The most common home countries for individuals who have withdrawn their applications for entry include Canada, India, China, France, and Mexico.

Below are the visa refusal statistics for the 2019-2023 period. These are the statistics for B Visitor Visas, not for other categories.

While some country’s visa refusal statistics have remained relatively steady, some have trended positively and others are headed in the wrong direction. For example, the refusal rate for Indians has dropped substantially since 2019 – from nearly 28% in 2019 to about 11% in 2023. However, for those who see the glass as “half empty,” they would point to the large increase from 2022 to 2023: from 6.54% to 10.99%.