Top 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions

Unlawful presence (212(a)(9)(B)), misrepresentations (212(a)(6)(C)(i)), and alien smuggling (212(a)(6)(E)) continue to be the most frequently invoked inadmissibility bars to entry to the United States by consular officers.  And while unlawful presence based on overstays in the United States is a relatively straightforward legal decision, determinations of willful, material misrepresentations and alien smuggling are not.   How does one define “materiality”? Was the misrepresentation actually “willful”? What does it mean to “aid and abet the illegal entry” to the United States? This 3-part blog will focus on the latest trends in consular misrepresentation (“6Ci”) decisions; later, we will address recent trends in smuggling (“6E”) adjudications.

Notwithstanding the pandemic and the limited operations of consular posts, the rendering of 6Ci determinations continues unabated.  In the pandemic years of FY2020 and FY2021, consuls entered more than 17,000 misrepresentation findings. During this time, we have observed the following:

1. Politics is Overestimated. Many thought that with the outgoing anti-immigrant Trump Administration the interpretations and enforcement of the misrepresentation provision of the Immigration and Nationality Act would become less stringent. That has not happened.  Consuls are just as zealous as they were before.
2. Discriminatory Aspects of Enforcement. While the Department of State will not acknowledge it, visa applicants in certain countries are more susceptible to enforcement of the misrepresentation provision than applicants in other countries.  This means that the exact same actions and perceived transgressions/violations are viewed and adjudicated differently, depending on the country in which the visa application is made.
3. No Statute of Limitations. Consuls are going further and further back in time to look for and “finding” misrepresentations. We have seen such findings based on events from 10, 20, and 30 years ago.  (Try to gather evidence from so many years ago to defend yourself!)
4. No Repose. Tied in with the lack of a statute of limitations, no repose means that even if you made visa applications during the intervening years and those applications were denied on other grounds (e.g., standard 214(b) lack of ties decision), the consul may reopen or reexamine events predating those applications and make a misrepresentation decision. In other words, just because you were denied under Section 214(b) in 2018, doesn’t mean that the consul will not pull up and review your 2001 visa application and issued visa for a potential misrepresentation.
5. Piling On.  Also related to this lack of a statute of limitations and the absence of repose, we have seen consuls “pile on”: punishing an individual twice for actions taking place during the same time frame under two different provisions of the Immigration and Nationality Act – sometimes many, many years apart. For example, we have seen situations where a person entered the US on a visitor visa, overstayed the visa more than a year, returned home, was properly denied a visa for unlawful presence and was subjected to the 10-year bar for unlawful presence. When the consul made the 10-year bar decision, the consul did not accuse the person of making any misrepresentations in the visa or entry process. Fast forward ten years. After the lapse of the 10 years, the same person applies for an immigrant visa. But this time he is denied under 6Ci because of activity engaged in while in the US on that visitor visa. In such instances, the consul accuses the person of violating the 90 Day Rule: the consul presumes that the person misrepresented his true intentions when applying for a visa or entry to the US because the person engaged in illegal work within 90 days of entry on a visitor visa. The end result: first, one consul only entered a 10-year bar, and after that was over, a different consul entered a permanent bar for a misrepresentation stemming from that same time frame.

The next blogs will discuss ten more trends and observations related to misrepresentations.  As always feel free to contact us to discuss your situation.