What If Your Spouse’s Immigrant Visa is Denied?
If you are married to a non-citizen of the United States, and your husband or wife was refused an immigrant visa or green card that you and your spouse had applied for based on that marriage, you are probably shocked and upset. The sad truth of the matter is, however, that marriage to a U.S. citizen or lawful permanent resident gives an immigrant the right to apply for a U.S. green card (lawful permanent residence) — but offers no guarantee that the green card will be granted.
What to do next will depend on the reason for the denial and which U.S. government office was handling your application.
Understanding the Reasons for the Denial
You probably have some idea of why the case was denied. It’s uncommon for the immigration authorities to deny a case outright. Usually, they’ll first tell you something like, “It appears that the applicant is inadmissible for health reasons — please go to this doctor for a follow-up exam,” or “We aren’t convinced that your marriage is bona — please provide us with additional documentation indicating that you are in a real, shared marital relationship.”
If you failed to do what was asked, or the follow-up evidence that you supplied either wasn’t enough or actually pointed to a reason for denial, then of course the case will have been denied. Maybe you’ve even come to the conclusion that your spouse is ineligible for the green card.
But the possibility also exists that the immigration authorities made a mistake. U.S. immigration law is extremely complicated, and any lawyer can tell you stories about cases that should have been granted and were not — sometimes for inexplicable reasons, or where it appeared that the decision maker just overlooked some of the evidence. Also, laws change — so, for example, you could have been denied because you are in a same-sex marriage before the 2013 Supreme Court decision overturning the Defense of Marriage Act, but same-sex marriages now qualify noncitizens for immigration benefits (if they are legally recognized in the state or country where they occurred).
In cases where you believe a mistake was made, you’ll probably want to take follow-up measures, as described below.
Denial at the U.S. Consulate
If your spouse applied for an immigrant visa (the entry document used to claim lawful permanent residence) at a U.S. consulate or embassy in his or her home country, and the case was denied, then no direct appeal is available. However, in some cases your lawyer may be able to request an advisory opinion on the case from the State Department’s Visa Office in Washington DC, and then use that to request that the consulate grant the immigrant visa after all.
In many other cases, however, the best bet course of action is to figure out what went wrong the first time and then reapply, making sure to correct the earlier problems.
Denial of Adjustment of Status in the U.S
If your spouse applied for a green card at an office of U.S. Citizenship and Immigration Services (USCIS) within the United States, then no direct appeal is available. However, your attorney may be able to request that the case be reopened, especially if you can supply new information that is likely to change the earlier decision. Here again, reapplying may also be an option, once you’ve figured out what went wrong the first time and how to correct it.
The situation will be different, however, if your spouse is in the United States without a valid visa. In that case, after the denial, he or she may be placed into removal (deportation) proceedings. There, you will need to present the entire application to an immigration judge, as well as testify and (if you like) call witnesses. Hopefully you will persuade the judge to grant the green card after all.
Get Advice From a Lawyer
An experienced immigration lawyer can assist you with filling out the requisite paperwork for your spouse and advocate on his or her behalf. If applying for adjustment of status, the attorney can also accompany you and your spouse to the green card interview (the required last step in the process) and help clear up misunderstandings and make sure the USCIS officer isn’t overlooking important information in your application.
Contributed by Svetlana Prizant, an Award Winning Queens Immigration Lawyer
Call Or Visit Prizant Law today at:
Prizant Law 118-21 Queens Blvd Suite 507 Forest Hills, NY 11375 (718) 407 0871