No Statute of Limitations in Visa Law – A Distressing New Phenomenon with Tragic Consequences

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Statutes of limitation apply in criminal law. They were put into place to prevent the prosecution of an alleged wrongdoing after a certain number of years has gone by (usually 5-7 years). There are many reasons for this: evidence goes stale; witnesses are unavailable; memories fade; to allow for certainty and repose of the parties; and to prevent inconsistent decisions.  But there is no statute of limitations in visa/immigration law.

With some exceptions, until recently, this has not been a significant problem.  But along with the anti-immigrant politics of the Trump Administration has come a new visa phenomenon: consular officers are now using the lack of a statute of limitations to “exhume” perceived past visa transgressions.  They are re-opening and reconsidering suspected visa violations – with no limitation of time or past consular “exoneration”.  Consular officers are now revisiting such transgressions from 5, 10, or even 15 years ago – and denying or permanently barring visa applicants as a result.  This, regardless of whether the person has been receiving visas or not after the alleged violation or suspicion of such a violation.

Take the case of Nikolai.  In 2004, Nikolai received a visa and traveled to the US.  He had originally planned to attend a few car auctions, buy some cars, and return home within a month.  But after a problem with a business partner in the US, he had to find a lawyer to initiate a lawsuit and find a new partner. Instead of staying in the US a month as he planned, he ended up spending 5 months.   A couple of years later, when he applied for a new visa, he was asked questions about why he had stayed for so long.  He answered the questions and provided documents to the consular officer to show what happened with his previous business partner.  After a 5 minute interview, he was granted a new visa.  He used the visa a couple of times – always returning to his home country after short visits to the US.

Fast forward to 2019.  Nikolai had not visited the US for more than 5 years. He settled down, got married, had a couple of kids, and continued to operate his small car dealership.  Deciding to reinitiate his business contacts with the United States, he applied for a new visa.  To his shock, he was asked again about why he had spent so much time in the US in 2004.  When he explained about the fallout with his partner, the lawsuit, and establishing a new business relationship, he was denied under Section 214(b).

Nikolai is not the only unlucky one.  We have consulted with individuals who were recently permanently barred under Section 212(a)(6)(C)(i) for supposed misrepresentations made back in 2010 and 2012. In the first case, the woman received several visas after 2010.  In subsequent visa interviews, she addressed the issue of having a baby in the US and paying the hospital bills. Without a problem, she received visas. 9 years later, the Embassy ignored those visa issuance decisions and accused her of lying in 2010.

These “out-of-the-blue” decisions years later are becoming more and more frequent. This means that the visa applicant should always be prepared for the possibility that questions will be raised about how a visa was used in the past.  Was there illegal employment? Was there a misrepresentation at the time of the visa application?  Were public benefits used?  The stakes for many are high: immigrating to join an American spouse, reunifying with children, lucrative employment in the United States.

In the immortal words of Bob Dylan, the times they are a-changin’. But unfortunately for visa applicants, not for the better. Don’t underestimate consular zeal.  Contact us to discuss your situation.