The Great Visa Myth: “If I Wait Long Enough, the Misrepresentation Bar Against Me Will Just Go Away.” Or, That Dead Horse Really is Dead.

Posted on December 18, 2024

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.

Worse for him, there is no I-601 Section 212(i) immigrant waiver available for a misrepresentation unless the applicant has a qualifying relative in the US: either a US citizen or legal permanent resident spouse or parent. Unfortunately, he does not have such relative. And so neither he nor his family – as his dependents - could immigrate. This narrow band of immigrant waiver eligibility for a misrepresentation is even more perverse when one considers that criminals are eligible for “forgiveness” and a Section 212(h) immigrant waiver after 15 years if they are able to show rehabilitation; no “qualifying relative” is needed.

Gone to the wind were not just green cards for him and his family, but more than 15 years of waiting and hoping for a different result. Rather than pursue immigration through his wife or to another country or at least send the children to the United States to study, he waited in his home country hoping that he would be able to get a green card through his US citizen brother. But not only did that not happen, he dug an even deeper hole for him and his family. By expressing the desire to immigrate, each member of the family now had a black mark against their name. While not barred from the US, each time that they apply for a nonimmigrant visa in the future they will need to answer the critical question about previous applications for immigration in the affirmative. Because such an intention to immigrate runs counter to one of the primary requirements for a visitor or student visa – an intent to return to the home country - it can be difficult to obtain a visa in such a situation, with such applications usually ending in Section 214(b) refusals.

The law is the law is the law, no matter how crazy and draconian it is. Hope really is not an option. Sad but true: this “dead horse” – the opportunity to immigrate – really cannot be resurrected. When in doubt, consult a qualified immigration lawyer.

Tags: I-601, immigrant waiver, qualifying relative, misrepresentation, Section 212(a)(6)(C)(i), FB4 Immigration, Family-Based Immigration, 214(b), Section 212(h) immigrant waiver, Section 212(i) immigrant waiver, F2B Immigration