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P6C - Department of State's War on Love, Logic and Law

by Marc Ellis

"It would be so nice, if something made sense for a change,"

(Lewis Carroll, Alice In Wonderland, 1865)

The Caveat:

In my experience, line consular officers & section chiefs tend to be well-educated and conscientious. They'd do a good job if they were trained properly by their agency. And they get lied to sometimes by visa applicants. This article is not aimed at them.

The Audience:

This article is aimed at the people who are supposed to be training them, in the Visa Office, Washington, D.C. It is aimed at US Citizen Petitioners who have had their futures damaged or jeopardized by the procedure I'm about to describe. It's aimed at immigration lawyers who may not know about this. And finally, it is directed at the agency that is legally empowered to manage the visa process [1], the Department of Homeland Security. I truly hope USCIS adjudicators and managers will read this, because the ad hoc boot-strapping by DOS I'm about to describe, might surprise them.

The Scenario:

A beneficiary goes to a consular interview and is handed an I-601 for her trouble. She is told she is inadmissible because she had made a 'material misrepresentation' on a previous visa application.

She's confused. What exactly did she misrepresent? The officer doesn't know. The officer just knows a previous petition for her was revoked. Her husband goes into the consulate and inquires. He's given the same answer. His wife had made a material misrepresentation on a previous application. But the officer doesn't know exactly what it was. All the officer can say is that a previous petition for his wife had been revoked. And his wife is now inadmissible for life without a waiver.

The Logic:

The Department of State has for many years, taken the position that applying for a benefit, being found ineligible for that benefit, and having USCIS revoke the petition for that benefit, somehow constitutes a material misrepresentation by the beneficiary. It's really that simple.

Ineligibility + revocation = inadmissibility. That is the logic DOS is using here.

That sounds wacky to people trained in immigration law. But that is the Department of State's position. Mere ineligibility for a visa, is magically transformed by consulates every day, into hard findings of inadmissibility under INA 212(a)(6)(c)(i).

Not Prophecy - Just Common Sense:

I predicted in 2007 that it was only a matter of time before DOS would be a defendant in major class action litigation over this and other issues.[2] Now, the inevitable has happened[3]. One of the remedies a class of aggrieved petitioners is seeking is an injunction against DOS, from placing p6c1 markers into visa applicants' files. The suit[4] asks the court to:

(i)"…issue a permanent injunction barring the State Department from placing a marker, called a "P6C1" marker, or "quasi-refusal" in a visa beneficiary's record, and deeming the DHS/USCIS revocation of the petition as automatically establishing the permanent misrepresentation bar to any future immigration possibility…"


I described this weird phenomenon, in an article entitled Consular Denials of Family-Based Immigrant Visas, in 2006. The P6c1 is administrative short-hand for a pending finding of INA 212(a)(6)(c)(i)[5] material misrepresentation by a visa applicant. The justification DOS uses is found at 9 FAM 40.63 note 10.1. I'll quote it here, and I'll add emphasis to the deadly part.

9 FAM 40.63 N10.1 Misrepresentation in Family Relationship Petitions (CT:VISA-1030; 09-22-2008)

Pursuant to 8 CFR 205, invalidation of a labor certification for fraud in accordance with the instructions of USCIS or the Department of State automatically revokes an employment based immigrant visa (IV) petition. On the other hand, USCIS retains exclusive authority to disapprove or revoke family-relationship IV petitions. Thus, a misrepresentation with respect to entitlement to status under a family relationship petition, e.g., document fraud, sham marriage or divorce, etc., cannot be deemed material as long as the petition is valid. Upon discovery of a misrepresentation, you must return the petition to the appropriate USCIS office. If the petition is revoked, the materiality of the misrepresentation is established.

Now the way this is written, it sounds reasonable. If an applicant makes a material misrepresentation during a visa interview, the materiality of that falsehood is not established until USCIS rules on it.

But that's not how this rule is being interpreted. The way it's applied, as we shall see, is that mere ineligibility for a visa, miraculously transforms itself into something else, a material misrepresentation by the beneficiary, with respect to entitlement of status.

Get it? An applicant has presented himself or herself as eligible. A consular officer has found the applicant ineligible and voila! The mere fact of ineligibility becomes a material misrepresentation.

This happens even if the applicant has not actually misrepresented anything. Over the years, this strange procedure has caused a lot of damage to US Citizens and their loved ones. It has resulted in hundreds, if not thousands of 212(a)(6)(c)(i) findings made against applicants who had never misrepresented anything.

Not only is this interpretation strange. It is incorrect as a matter of law. As I was researching this article, a well-known legal colleague referred me to the case of Matter of Healey and Goodchild, 17 I&N 22, (1979).

In that case, the Board held that a finding of excludability (inadmissibility), should be "subject to close scrutiny, particularly where the alleged fraud or misrepresentation, involves a disputed issue as to the alien's subjective intent."[6]

How can anyone argue there is 'close scrutiny' of these manufactured p6c misrepresentation findings? Remember the scenario here. Consulates can't even tell petitioners exactly what the misrepresentation was.

In my view, the mistake DOS is making here is very simple. It is interpreting 9 FAM 40.63 note 10.1 as a separate, new ground of inadmissibility. It considers this note to be substantive guidance, having the same effect as a Board of Immigration Appeals decision. And that's the wrong way to read it. There is no BIA decision which holds that mere ineligibility for a benefit is the same thing as a material misrepresentation.

Perhaps this note should be read as procedural guidance. When viewed that way, it makes more sense. A finding of material misrepresentation does not become final until USCIS revokes the petition. But the mere revocation of a petition, does not create a material misrepresentation. But that's what is happening every day, in every busy Immigrant Visa Section in US consulates around the world.

How it Works:

Consulates place a p6c1 marker in a beneficiary's file, every time a family visa is refused on the merits. It's placed there regardless of whether any misrepresentations were actually made by the beneficiary or not. All that is necessary is for the visa to be refused.

Next, the consulate writes a memorandum justifying its view that the beneficiary is not eligible for the visa. The consular memorandum usually contains more than one reason. In my experience, in the vast majority of cases, none of the reasons remotely resemble a material misrepresentation by the applicant. This is true, even using DOS's own standards, which I will quote later.

The petition file, containing the consular memorandum, is then sent back to USCIS. And USCIS eventually sends the petitioner something called a Notice of Intention to Revoke (NOIR). It's written by USCIS. But it usually quotes the reasons written in the consular memorandum.

If the petitioner fails to respond, or does not successfully rebut the NOIR, the petition's approval is revoked. The reasons listed by the consulate become true, as a matter of law.

OK. All of that makes sense so far. But remember, most of the time, none of these reasons amount to a material misrepresentation under the law.

Now something else happens. And it is far more deadly and far more insidious. That p6c1 marker now becomes a hard finding of material misrepresentation against the beneficiary.

Remember the scenario here. The consulate doesn't know what the misrepresentation was. All it knows is that USCIS revoked a petition, based on what it wrote in a memorandum.

Why do petitions get revoked?

There are two kinds of petition revocation[7], automatic revocation, and revocation on notice. Most of the time, petitioners simply don't respond. The notice may have come because a consulate sent back a fiancée petition, while the petitioner has since gotten married to the beneficiary and filed a new petition. Or perhaps, the NOIR never arrived in the mail. Quite often petitioners are given bad legal advice and told they don't need to respond. They're told that filing a new petition solves their problem.

This issue of why petitions are revoked is really a red herring here. Remember the scenario I gave you. Most of these NOIR's don't contain any allegations of material misrepresentations anyway. So what difference would it make why the petition was revoked, if there was no material misrepresentation alleged?

What's In A Consular Return Memorandum?

What follows is a pretty common list of consular allegations quoted in NOIR's that I've seen. I'm hoping there are immigration lawyers & USCIS adjudicators reading this article. I invite them to find a single material misrepresentation in any of these consular allegations

Photographs submitted as evidence of the relationship indicate that the petitioner and the beneficiary have spent only two or three days together.

The beneficiary and the petitioner did not have an engagement ceremony. This contradicts local social and cultural norms in which many family members and friends are invited to engagement celebrations numbering in the hundreds of guest for even families of modest means.

The beneficiary is unaware of the basic facts of the petitioner's occupational background. She does not know the name of the petitioner's immediate supervisor. The beneficiary is unaware of the basic facts of the petitioner's occupational background. She does not know the name of any of petitioner's co-workers.

The beneficiary is unaware of the petitioner's day-to-day social contacts.

"The consulate official noted the petitioner is nineteen years older than the beneficiary." There appears to be a communication issue between the couple. The beneficiary submitted letters as evidence of communications. The consulate officer reported an individual signed the letters as ______. The beneficiary claimed that "______" is the petitioner's nickname."

The consulate reported that the beneficiary provided insufficient evidence of a bona fide spousal relationship. Written correspondence submitted as evidence of communication consisted of only one letter.

All of beneficiary's phone calls to the United States were made to an unlisted cell phone.

During the interview, beneficiary stated that she was introduced to the petitioner over the phone by her cousin. The petitioner and her cousin are alleged to be co-workers.

During her consular interview, the beneficiary was unable to answer basic questions about petitioner's family and failed to submit sufficient verifiable evidence to support an ongoing and bona fide spousal relationship with petitioner.

During her consular interview, the beneficiary failed to submit sufficient verifiable evidence to support an ongoing and bona fide spousal relationship with petitioner.

The beneficiary stated that the petitioner proposed in March, 2007, immediately after stepping off the airplane during the petitioner's first visit. The petitioner and the beneficiary were married 19 days later."

The beneficiary claimed that he talked to the petitioner every few days on the phone, but he did not know what the petitioner did last week-end.

The beneficiary divorced her ex-spouse within one year of marrying the petitioner.

The petitioner and beneficiary got married during the petitioner's first visit. The duration of petitioner's entire trip was brief.

The petitioner and the beneficiary do not share a common language.

Where is there a material misrepresentation in any of those allegations? I submit to you, there are none. And yet, if USCIS had revoked any of those petition approvals, a hard finding of 212(a)(6)(c)(i) inadmissibility would have been made by Department of State against the beneficiaries, in every one of these cases. And what exactly did they misrepresent? Not one damned thing.

What's a Material Misrepresentation Anyway? (Part I)

Let's look at Department of State's own criteria, in the notes found at 9 FAM 40.63.

[8]In order to find an alien inadmissible under INA 212(a)(6)(C)(i), it must be determined that:

(1) There has been a misrepresentation made by the applicant (see 9 FAM 40.63 N4);

(2) The misrepresentation was willfully made (see 9 FAM 40.63 N5); and

(3) The fact misrepresented is material (see 9 FAM 40.63 N6); or…"

Note 3 deals with fraud, which involves a more difficult legal standard than material misrepresentation. And that's important, because if you get down to what Graham Greene called the heart of the matter[9], DOS may be manufacturing these ad hoc misrepresentation findings, because it knows it is too difficult to meet the legal standard for fraud.

From Note 4 (emphasis added to the deadly part):

"…material misrepresentation" includes simply a false misrepresentation, willfully misrepresented material fact, which is relevant to the alien's visa entitlement. It is not necessary that an "intent to deceive" be established by proof, or that the officer believes and acts upon the false representation. (See Matter of S and B-C, 9 I & N 436, 448-449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I & N 288 (1975).

Now think about that list of allegations I gave you. Can you see what is happening now? DOS has arrived at a way to establish a material misrepresentation, without any need to prove it really happened. All it needs is to do, is sling a bunch of allegations and hope that some of them will stick well enough for a petition to be revoked.

Why? The question "why" is complicated. Why do the visa gurus of Foggy Bottom[10] insist on insulting US Citizen Petitioners and damaging their families, without good cause? I can't answer that. But it's been like that for a long time.

But I can answer the question why DOS prefers to make findings of material misrepresentations rather than fraud findings. Fraud requires proof! And in DOS's view, material misrepresentations don't.

And that's the insidious part. US Citizen Petitioners would actually be better off, if consular officers were making fraud findings, instead of these manufactured p6c findings. Why? At least, with a fraud finding under INA 204(c)[11], the petitioner can have his case reviewed again in a subsequent petition. See Matter of Tawfik[12].

Tawfik stands for the proposition that a finding of marriage fraud in a subsequent petition cannot be based merely on reasonable inferences from the previous record. The evidence proving marriage fraud must be 'substantial and probative'.

As we can see from my list, that's not the case with these p6c1 markers. Consulates can allege almost anything and if the petition is revoked - the consulate wins. And the US Citizen's family loses. There is no re-examination triggered by the filing of a new petition. The inadmissibility finding is still there. And the only way around it is a discretionary waiver.

What is a Material Misrepresentation Anyway? Part II:

Let's go down the list.

[13]"…a misrepresentation is an assertion or manifestation not in accordance with the facts."

Looking at the list of consular allegations I provided, which of those meets this criterion?

"Willfully": In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately made an untrue statement."

Once again, look at the consular list of reasons I provided, which of those is allegations by a consulate is a 'willful untruth'?

What is "material"?

[14](1) The alien is inadmissible on the true facts; or

(2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he or she be inadmissible." (Matter of S- and B-C, 9 I & N 436, at 447.)

Which of those allegations I quoted would make a beneficiary inadmissible on the facts? Which would shut off a line of inquiry by a consular officer?

What's the Solution?

The partial solution is for Department of State to halt the practice of spinning these 212(a)(6)(c)(i) findings out of p6c markers, merely because a petition has been revoked. This has caused untold damage to hundreds, if not thousands of American families. And it is without legal justification.

The long-term solution is for Department of Homeland Security to at long last, exercise its statutory prerogative, and train consular officers and their section chiefs in nuts and bolts immigration law.

At the very least, consular officers need to have the same level of proficiency in immigration law as rookie DAO's. And they don't. In fact, I haven't met a Section Chief yet, who could function for a week as a District Adjudication Officer in a USCIS office.

"But the issues are different," you might say. Yes. But the law is the same. The language of the statutes and the case law consulates are required to follow are the same. It's the same 8 CFR. The only thing that is different is the nature of training given to consular officers and USCIS adjudicators.

Whatever complaints people may have about USCIS, I have never heard an officer argue that ineligibility is the same thing as a material misrepresentation. That would be laughable, if the consequences weren't so tragic.

What are the Consequences?

The Department of State's own guidance at 9 FAM 40.63 note 1.2 states the consequences of a material misrepresentation finding with clarity and eloquence.

"When considering whether to impose such a dire penalty, keep in mind the words quoted by the Attorney General in his landmark opinion on this matter. (The Matter of S- and B-C, 9 I & N Dec. 436, at 447): "Shutting off the opportunity to come to the United States actually is a crushing deprivation to many prospective immigrants. Very often it destroys the hopes and aspirations of a lifetime, and it frequently operates not only against the individual immediately but also bears heavily upon his family in and out of the United States."

How can that language be reconciled with the process I've described here?

It's not the fault of consular officers or even the section chiefs. The Department of State employees are truly elite. I don't disparage that at all. But too many of them are not properly trained in the laws they are supposed to administer. This weird interpretation of the law would not have happened if they were. And the agency that is ultimately responsible for training them is the Department of Homeland Security[15]. I hope that if DHS were to learn what DOS was doing here, it would put a stop to it. After all, it's the agency that winds up getting sued when consulates misapply the laws. It's the agency that has to adjudicate waivers on all these meritless 212(a)(6)(c)(i) findings by consulates.

So the p6c1 issue is just a symptom of a much larger problem. And it comes down to training. I have no doubt, that if the line officers in consulates were trained by DHS, they would do a good job. And US citizens and their loved ones would be better off.

A Misrepresentation of a Misrepresentation:

Hopping back to Alice and the rabbit hole where we began, is it going too far to say, that the Department of State's p6c1 procedure for creating material misrepresentation findings without proof, is itself a misrepresentation?

It's a misrepresentation made to the Department of Homeland Security, the agency that has to adjudicate all the I-601 waivers submitted by baffled and frightened US families, who never do learn what they misrepresented. And worse, it's a misrepresentation and a profound insult to US Citizen petitioners. Nobody has lied, and yet they stand accused of lying, by the Department of State.

If US Citizens or their loved ones, are accused by their government of lying, at the very least, that accuser ought to be required to point out exactly what the lie was. But consulates can't do that. And most of the time, there is no lie in the record and there never was. There is only a computer entry showing a petition has been revoked. That's all.

How does the integrity of the system benefit from this? US Citizen petitioners and their families certainly don't benefit. USCIS doesn't benefit. After all, DOS is increasing its workload and bogging the agency down in needless litigation.

So who exactly does benefit? I don't know. But I know the practice continues today. Hundreds of beneficiaries are still being tagged with p6c markers. And most of them have never lied about anything.

How do you make sense of that? I can't. But it reminds me of something Nikolai Gogol wrote a long time ago,

"Perfect nonsense goes on in the world. Sometimes there is no plausibility at all"[16]

Maybe it's time for DHS to put a stop to this nonsense.


1 PUBLIC LAW 107-296-NOV. 25, 2002, Homeland Security Act 2002 Sections 402 (6 USC 202, 116 Stat.2178 (4) & Sec. 428. (6 USC 236; 116 Stat 2187)

2 Clash of the Titan Bureaucracies - the Sequel

3 Tran versus Napolitano, D.Ct. Portland, CV10-724.

4 Tran versus Napolitano, pp 3-4.

5 INA § 212(a)(6)(C)(i)" Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.")

6 Healy id., at (6)

7 8 CFR 205.1 & 205.2

8 Note 2 9 FAM 40.63

9 Graham Greene novel"The Heart of the Matter" (1948)

10 Common name given to the Department of State Grounds in Washington, DC.

11 8 USC 1154(c), INA, 204(c), "Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud Notwithstanding the provisions of subsection (b) of this section no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

12 Matter of Tawfik, 20 I&N Dec. 166, 167 (BIA 1990).

13 Note 4.1 9 FAM 40.63

14 Note 6.1 9 FAM 40.63

15 6 USC 236, Public Law 107-296, 116 STAT 2187-2188. (b) IN GENERAL.-Notwithstanding section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) of this section, the Secretary- (1) shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of such Act, and of all other immigration and nationality States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Secretary shall not have authority to alter or reverse the decision of a consular officer to refuse a visa to an alien…"

16 Nikolai Gogol (The Nose, 1836)

About The Author

Marc Ellis practices immigration law in Ho Chi Minh City, Vietnam. His website is He has been a member of AILA since 1997. He is one of very few foreign lawyers licensed in Vietnam and he is licensed in Louisiana. He is a composer, a published poet, a comic playwright, and in 2011, he has been invited to perform his Fantomas Waltz, at the 100th Centenary of the novel, "Fantomas", in Paris.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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