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Unlawful presence (212(a)(9)(B)), misrepresentations (212(a)(6)(C)(i)), and alien smuggling (212(a)(6)(E)) continue to be the most frequently invoked inadmissibility bars to entry to the United States by consular officers. And while unlawful presence based on overstays in the United States is a relatively straightforward legal decision, determinations of willful, material misrepresentations and alien smuggling are not. How does one define “materiality”? Was the misrepresentation actually “willful”? What does it mean to “aid and abet the illegal entry” to the United States? This 3-part blog will focus on the latest trends in consular misrepresentation (“6Ci”) decisions; later, we will address recent trends in smuggling (“6E”) adjudications. Notwithstanding the pandemic and the limited operations of consular posts, the rendering of 6Ci determinations continues unabated. In the pandemic years of FY2020 and FY2021, consuls entered more than 17,000 misrepresentation findings. During this time, we have observed the following: Politics is Overestimated. Many thought that with…

It is fire season here in California, and inevitably talk turns to what could have been done to prevent the latest big fire, that the fire could have been prevented if only…. The lessons learned are so applicable to visas that I even have a painting of firemen and a firetruck in my office. Clients come to me with a “five-alarm fire," and often my first thought is what could have been done to prevent the fire. Sometimes, the problem is as simple as correctly and properly filling in the DS-160 visa application form or even having a copy of the visa application form. In many of these consultations, inevitably the topic turns to what was indicated in the visa application form. I ask for a copy of the DS-160 visa application form and the client does not have one. The client attempts to reconstruct the application or tries to…

Just because you have arrived at an airport in the United States does not mean that you are protected by the US Constitution and the right to be free from unreasonable searches. This is the unfortunate lesson learned by hundreds of travelers each day to the US. Worse, the messages on one’s own phone can lead to a cancelled visa, a return trip home, and a permanent ban on entry. As international travel has reemerged after the pandemic, so have the problems experienced by international visitors to the US. Just over the past few months we have conducted numerous consultations with individuals subject to intrusive CBP searches at the airports, including luggage checks and the contents of telephones. These searches have led to accusations of unlawful employment (most common), prostitution, drug use, intent to remain in the US beyond the length of permitted stay, intent to marry, and intent to…

Heartbreaking are the immigrant visa cases when, because of a youthful indiscretion or transgression, the applicant is denied the visa to join a spouse or parent or child in the United States under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. This section of the law renders a person permanently inadmissible because of a conviction or admitting to committing a crime of moral turpitude. Thankfully, there are solutions. One solution is to challenge the decision. In a case we recently handled, the applicant had been denied an immigrant visa as the husband of a Lottery winner on these grounds, and then 10 years later, denied again as the parent of a US citizen on these same grounds. But the criminal case which was the basis for this visa refusal decision had been terminated before a final decision was made by the judge because of an amnesty. We challenged the 212(a)(2)(A)(i)(I)…

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…