Top 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions – Part II
Last week we began the list of the top 15 trends and observations relating to the consular imposition of permanent bars under Section 212(a)(6)(C)(i) for willful, material misrepresentations. Hopefully, this will inform and educate as you plan for future visa applications. Here, we continue that list:
6. OPT Fraud. Much ink and many tears have been shed over the OPT scandal, with the full impact only now being felt. Starting in 2020, thousands of individuals have been permanently barred from the US for their association with scam OPT companies, such as Findream, AZTech, Integra, Wireclass, and Global IT Experts. More can be read about this scandal on our blogs, but suffice to say that the consequences will be felt for the rest of the lives of not only these individuals, but close family members and American employers as well. Instead of being able to live the American dream, these talented individuals are exploring other immigration alternatives – to Canada, the UK, and Australia – or reconciling themselves to staying in India or China.
7. Sham Marriages. While statistics are hard to come by, consular officers continue to zealously accuse fiancées and spouses of US citizens of marriage fraud. Often times these accusations have their basis in nationality-based discrimination or profiling, depending on your point of view. For example, Mary is Nationality X; Country X is poor; many of Mary’s compatriots have stayed in the US illegally; Mary was denied US visitor visas before. Therefore, Mary is desperate to leave Country X and entered into this sham/bogus/fictitious relationship with a US citizen in order to move to the US.
8. ESTA – Electronic System for Travel Authorization. The ESTA authorization application form is relatively simple and straightforward. So who would have thought that a Customs and Border Protection form would now be the source of so many Department of State consular accusations of willful, material misrepresentations? Inaccurate answers to questions on the form, such as whether you have ever been denied a visa, ever been convicted for causing serious harm to property, or ever visited certain black-listed countries can lead to a 6Ci finding. This, regardless of the legal ambiguities in interpreting what is “serious harm” or trying to understand whether a temporary denial under Section 221(g) in which the visa application is still under review is a refusal for purposes of ESTA (it is).
9. Expunged Convictions. One of the most common misrepresentation accusations relates to expunged convictions. Most countries have some version of an expungement law – in which an individual with a conviction can, after a certain period of time and rehabilitation, have the conviction stricken from their record. They can then answer questions related to the conviction in the negative; for example, when applying for a job, it is not necessary to indicate such conviction. Even some of the government authorities indicate a “clean” record in the police certificate used for immigration purposes. And so this mindset carries over to the US visa application process: no need to indicate such past conviction in the visa application form, right? Wrong. Worse, the consul believes that you willfully lied about it when you filled in the visa application, and permanently bars you as a result.
10. 90 Day Rule. This actually deserves top billing and its own law review article. There is no more draconian and improperly applied interpretation of the misrepresentation provision of the Immigration and Nationality Act than this Department of State rule. Previously known as the 30/60 day rule and expanded under Trump to 90 days, the essence of the rule is that if an individual arrives to the United States in one status (e.g., visitor), and within 90 days of arrival engages in activity that is inconsistent with that status (e.g., illegal work), the consul can presume that the individual made a willful, material misrepresentation: either in the visa application or at the time of entry to the United States to the CBP inspector. As a result of that presumption, the consul can permanently bar the individual.
Sometimes these consular decisions are erroneous and can be challenged, so feel free to contact us to discuss your situation. Next up: the final five trends and observations, including some of the most bizarre cases we have seen.