US citizen R and his out-of-wedlock 19-year old son J had submitted DNA tests in support of R’s immigrant petition. USCIS approved the petition. Yet when J went to the consulate for his immigrant visa interview, the approval of that petition and the DNA results from an officially accredited laboratory in the US were not sufficient to convince the consular officer to issue the immigrant visa to J. The consul insisted that J change his surname to his father’s surname, and temporarily refused the visa under Section 221(g). After more than 2 years of dealing with local bureaucracy in trying to get his son’s name changed, R contacted us. We brought this to the attention of a consular supervisor and requested reconsideration. Specifically, we pointed to the fact that there is no legal requirement that a petitioned-for child have the same surname as the US citizen. We also presented overwhelming evidence of the father-child relationship and their attempts over 2 years to get J’s surname changed. In short order, the immigrant visa was issued to J.
While the term “alien smuggling” conjures up the notion of a person illicitly transporting or escorting a person across the border under cover of dark, the reality is that the definition in immigration law is much, much broader. According to INA section 212(a)(6)(E), alien smuggling is when a person knowingly “encouraged, induced, assisted, abetted or aided” another person “to enter or try to enter the United States” in violation of law.
There does not need to be a finding by the consular officer that the “smuggler” had a profit motive or received money. In fact, it is family members who have not received any money who are most often the subject of accusations of alien smuggling.
In addition to “coyotes” smuggling individuals across the border, alien smuggling comes up in a variety of ways:
- In the Diversity Lottery, marriages concluded after notification of being selected trigger scrutiny of a sham marriage. In such “pop-up” marriage cases, a person wishing to immigrate but not winning the Lottery pays a Lottery winner to get married so that she would be eligible to immigrate as the spouse. If the consular officer finds that the marriage is a sham, the officer will permanently bar the Lottery winner as an alien smuggler and the other “spouse” for committing a misrepresentation;
- Lying about a dependent applicant’s age or marital status. A person under 21 and single is considered a dependent for immigration purposes. So parents who intentionally lie that a child is under 21 or that a child is unmarried when he is in fact married are subject to a finding of alien smuggling. When consular officers have such suspicions, they can order a bone density test to help them determine the age of a child, or check with the nearby civil registry to determine whether the child is married.
- Lying that a visa applicant is your child. In such cases, the consular officer can order a DNA test to determine paternity or maternity.
- Tour organizers who knowingly incorporate an “outsider or outsiders” into a group. For example, an individual applies for a visa as part of a baseball team but in reality has nothing to do with the team. When a tour organizer knowingly tries to facilitate the issuance of a visa to that “outsider”, he could be subject to a charge of alien smuggling.
- Visa consultants who counsel their clients to knowingly lie on visa applications or supply them with false documents to help them obtain visas can be found inadmissible as an alien smuggler.
- A parent who applies for a visitor visa for her child but secretly plans to enroll the child in a school in the US after arrival could be deemed to be an alien smuggler.
- In India, there has been much confusion about marriages and the rituals necessary to legalize the marriage. This usually comes up in the context of dependent visas for spouses, such as L-2 and H-4. The applicant insists he or she is married, but after undergoing consular investigation and interrogation, the consular officer comes to the conclusion that the marriage has not been legalized. In such cases, the consul finds the principal visa holder inadmissible as an alien smuggler and finds the dependent spouse inadmissible for a misrepresentation.
Consular officers can be quite aggressive in interrogating a visa applicant on these grounds. In a spousal situation in which both are applying for visas and a sham marriage is suspected, the applicants can be placed in separate rooms and subject to in-depth, very personal questioning about the relationship. The answers are then compared for discrepancies. A consul may compel a visa applicant to write a «Voluntary Statement» — usually, a confession — about the nature of the relationship.
One of the critical elements and prerequisites to making such a finding is that the person must knowingly intend to help another person obtain a visa or cross the border who is not eligible. Therefore, an honest misunderstanding of a person’s status is an absolute defense to such an accusation. For example, a parent who does not know his son got married cannot be charged with alien smuggling because the parent did not know of his true marital status. The driver of a car crossing the border who thought that his passenger had a green card also should not be subject to such an accusation because he did not knowingly intend to bring someone to the US illegally. An intention to remain or change status in the United States that arises only after entry to the US cannot serve as the basis for an accusation that a family member who helped in the visitor visa process is an alien smuggler.
Individuals permanently barred under 6E are eligible for nonimmigrant waivers. However, they are eligible for immigrant waivers only in limited circumstances — when they tried to smuggle close family members.
As can be seen, these decisions can often be disputed and challenged. Consular officers are not mindreaders; discerning a person’s intent and knowledge can be difficult. Answering a question or two wrong about a spouse’s favorite color or perfume should not lead to a finding of a sham marriage. With our assistance and legal support, many individuals have been able to overcome these life-changing decisions of alien smuggling. Approximately 20% of alien smuggling decisions are overturned or have waivers approved, according to Department of State statistics. Please contact us to find out how we can help you.