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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.

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.