No Statute of Limitations on Challenging a Permanent Ban for a Mistaken Misrepresentation, Alien Smuggling, or Crime of Moral Turpitude Visa Decision

Fair is fair, right?  Consular officers can and do impose permanent bars for an alleged misrepresentation in a visa application form or entry to the United States from 5, 10, 20, 25 years ago. For example, we have seen some crazy decisions at visa interviews based on a supposed misrepresentation made to an airport inspector decades ago about their true intent – triggered by application of the so-called 90-day rule. But on the flip side, did you know that there are no time limitations on when you may challenge a consular visa decision to permanently bar you from the United States? If the visa decision made to permanently bar you for a misrepresentation, alien smuggling, or conviction of a crime of moral turpitude was made last week, last year, last decade, or even 35 years ago and it was wrong then, it is wrong – and continues to wreak havoc on your life – now.

To be clear, it is always easier to challenge a visa decision when it was made or shortly after the decision. Evidence and memories are fresh; a consul may be more willing to re-open the decision.  But there are no time limitations on challenging a wrongfully-entered inadmissibility finding. More than 20,000 visas are denied on misrepresentation (Section 212(a)(6)(C)(i)), alien smuggling (212(a)(6)(E)), and crimes of moral turpitude (212(a)(2)(A)(i)(I)) grounds on average every year. Hundreds more are permanently denied on other grounds.  Even if a small percentage of those decisions are erroneous – a realistic assumption given the restricted time consuls have to make these life-changing decisions; the limited training that they undergo; the absence of any legal background of many consuls; and the numerous successful Case Studies on this site – this means that hundreds, if not thousands, of individuals are permanently barred by mistake every single year.  This would translate to perhaps tens of thousands erroneous permanent bans – “visa death penalties” – entered since the 1990s.

While there are procedural formalities that need to be observed in initiating such a challenge, the consul must give you “every reasonable opportunity” to establish your eligibility for the visa. This is mandated by the Department of State rules.  This means that even if you are applying for a visitor visa today – many, many years after you were deemed to be inadmissible and you do not agree with that decision – you still have the ability to challenge that decision.  This means that if you still qualify for the immigrant visa many, many years later, you can reactivate your immigrant visa case – you still have the ability to challenge that decision.

This is not to underestimate the magnitude of the difficulty in doing so. And this is not to be confused with the popular myth that “maybe the permanent bar will just go away if I wait a few years”: the reality is and the law says that a permanent bar is just that – permanent. It does not go away, unless you request that it be removed and prove that it was entered erroneously.  

If the consul accuses you of committing a willful, material misrepresentation, but you did not, then you can challenge that finding later. If the consul believes that your conviction was for a crime of moral turpitude, but it was not, you can challenge that finding later. If the consul accuses you of entering into a sham marriage after winning the Lottery, but it was a real marriage, then you can challenge that finding later.   This is what happened to a recent client, who successfully was able to counter an “alien smuggling” charge by showing that his marriage from more than 10 years prior was indeed legitimate – not entered into in order to facilitate illegal immigration.

There are numerous reasons for challenging an erroneously-entered decision.  No immigrant waiver may be available (e.g., parent of a US citizen), foreclosing other options to immigrate.  A permanent bar impacts the ability to study or work in the United States – adversely affecting financial prospects. Grandparents may never be able to visit their grandchildren in the United States. A permanent bar impacts the ability to attend conferences and go on business trips – adversely affecting careers.  Individuals applying to immigrate to other countries may need to explain to those immigration authorities the accusation of the US Government against them.  The taint of the black mark of a wrongfully-entered “permanent ban” may be so distasteful that just out of principle an individual may want to challenge it.

If you believe that you were permanently barred by mistake – regardless of how long ago it was – please contact us to discuss your situation.