Consular officers permanently bar more visa applicants every year for “alien smuggling” than any other provision of the Immigration and Nationality Act except misrepresentation. In 2012 alone, consular officers invoked the alien smuggling provision of the INA, Section 212(a)(6)(E), more than 6,000 times, an increase of more than 20% from the year before. What are the standards for a finding of alien smuggling, and what categories of people have been subject to this provision of the INA?
A consular officer can make an alien smuggling finding if he or she decides that a visa applicant has, at any time, knowingly “encouraged, induced, assisted, abetted or aided…” another alien “to enter or try to enter the United States” in violation of law. The Immigration Act of 1990 abolished the “for gain” requirement, so a consular officer does not need to find that the applicant had a profit motive or received money to make this finding.
These findings come up in a variety of scenarios. In the Diversity Lottery context, those who have been selected as “winners” and marry before their immigrant visa interviews are often found to be alien smuggling: entering the marriage in order to smuggle their new spouse into the United States in exchange for money. These “pop-up marriage” cases are subject to rigorous scrutiny, with spouses often subject to separate interviews in separate rooms, with personal questions posed, such as “what side of the bed does your spouse sleep on” and “what kind of toothpaste does she use.” The consulate can send investigators out to the apartment to see if they really are living together.
Other kinds of alien smuggling cases often implicate travel agents or anyone organizing a group tour. If a professor working at a university is responsible for organizing a seminar, and together with his students includes in the group an individual who is not a student, a consular officer could accuse the professor of alien smuggling. Even parents in the process of immigrating could be accused of alien smuggling if they include in their family someone who is not eligible to immigration, for example, a married child under the age of 21.
The good news is that many of these findings are overturned. For example, we have been very successful in getting alien smuggling decisions reversed in Lottery cases mentioned above. Usually, if the marriage is a bona fide one, the couple are able to evidence that the marriage is a legitimate one. This takes time and meticulousness in gathering and presenting this evidence. But if you feel that you have been subject to a wrong accusation of alien smuggling, feel free to contact us to discuss your situation.