Options after a Consular Officer Denies Your U.S. Visa Application
Options after a Consular Officer Denies Your U.S. Visa Application
As an immigration attorneys in New York, I often get questions regarding visa denials. If your visa is denied, you may be confused and frustrated. And consular officers may be unwilling or unable to properly explain the grounds for refusal and your options for overcoming the refusal. How can an attorney help? Consular officers have nearly absolute authority to make decisions as they see fit, while applicants have no right to administrative appeal, and lawyers have no right to be present at the consular interview. But clients are best served by lawyers with expertise in consular processing.
1. Visa Refusals
An applicant whose visa has been refused needs to understand precisely why. The strategy for challenging the denial will depend on the particular denial grounds. With certain exceptions, consular officer should notify the applicant orally and in writing of the grounds of refusal. If the consular officer has not done so—or the applicant has not understood—the lawyer's role may be to inquire further with the consular officer about the grounds of refusal.
1.1 Grounds for Refusal
An applicant whom the consular officer has determined falls within the "grounds of inadmissibility" will be refused a visa under a subsection of "212(a)." These grounds of inadmissibility are a set of rules prohibiting the admission to the U.S. of certain classes of persons for crimes, medical reasons, security, because they would likely become public charges, for prior immigration violations, and other miscellaneous grounds. There are exceptions and waivers available to many of the grounds.
Section 214(b) of the Act requires consular officers to "presume" that certain nonimmigrant visa applicants are immigrants unless they prove to the officer's satisfaction that they meet each of the requirements for a particular nonimmigrant visa. This applies to applicants for B1/B2 (visitor for business or pleasure), F-1 (student), and J-1 (exchange visitor) visas, among others. The 214(b) ground for refusal does not apply to H-1, L-1, or immigrant visa applicants. Consular posts often issue boilerplate refusal notices citing 214(b) as the basis for denial. The most common basis for issuance of a 214(b) letter is that the applicant failed to prove an unabandoned foreign residence or nonimmigrant intent. There is no waiver of this ground of ineligibility. This ground of ineligibility is not
permanent, meaning that the fact that a visa applicant was unable to establish nonimmigrant status at one time would not preclude the applicant from subsequently qualifying for a visa by showing a change in circumstances. For more about proving nonimmigrant intent, please call my immigration law office in New York.
An application will be subject to a "quasi-refusal" under INA § 221(g) if a final determination is deferred by the consular officer. An applicant who has been refused under 221(g) need not complete a new visa application form or pay the visa application fee again, if less than one year has elapsed since the latest refusal. (If the delay is due to U.S. Government action, there is no time limit). When the reason for the deferral has been addressed, the visa application form is to be retrieved from the post's files, the new information noted, and the visa either issued or refused.
Specific reasons for deferral include:
Suspension of Action on Petition: U.S. Citizenship and Immigration Services (USCIS) has exclusive authority to adjudicate visa petitions. So in a case where the nonimmigrant or immigrant visa application is based on an underlying petition approved by USCIS, the consular officer may suspend action and return the petition, with a report of the facts, for reconsideration by USCIS if the officer knows or has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other reason, to the status approved. Once the petition is returned by the consular officer, any consular actions on the case would be frozen. The documents to be returned to the USCIS include the original petition along with all supporting documents. Upon receiving these materials, the USCIS adjudications officer may issue a Notice of Intent to Revoke requiring the petitioner to re-establish eligibility for the benefit sought. USCIS must have "good and sufficient cause" in order to revoke an approved petition. If USCIS decides to reaffirm the approval of the petition, the visa application should be immediately resubmitted with the consulate for visa approval. This process can take several months or longer. Filing a new petition with USCIS may be a faster option.
2. Reconsideration or Resubmission of Applications
In all *immigrant visa* cases, the applicant has one year after refusal to request reconsideration and need not file a new application or pay a new application fee. If more than one year has elapsed, reapplication is required. The Motion to Reconsider should be professionally presented, and include all relevant legal arguments and documentary evidence. For nonimmigrant visa refusals–except INA §221(g) refusals—the only way to obtain "reconsideration" is to complete a new visa application form and resubmit the application.
3. Supervisorial Review at the Consular Post
For *nonimmigrant visa* applications, the regulations provide that *all* denials should be reviewed by a supervisor. The Foreign Affairs Manual somewhat contradictorily states that as many refusals as practical, but not fewer than 20%, should be reviewed. The review should take place "without delay; that is, on the day of the refusal or as soon as it is administratively possible," but state that if the applicant has indicated a desire to submit additional evidence, review may be "deferred for not more than 120 days." For *immigrant visa* applications, the review must take place "on the day of the refusal or as soon thereafter as is administratively possible (no later than 30 days after the refusal, in any event)." There is no time limit for how long a case requiring additional evidence may be deferred before the review is initiated. The supervisor who reviews the visa refusal has three options: (1) affirm the denial; (2) request an advisory opinion from the State Department; or (3) assume responsibility and readjudicate the case. The supervisor cannot reverse an INA § 214(b) refusal (failure to establish nonimmigrant intent) without re-interviewing the applicant. The lawyer's job is to act quickly and professionally in an attempt to persuade the supervisor of the wisdom of re-interviewing the applicant or re-adjudicating the case.
4. Advisory Opinion from the Visa Office
If the lawyer believes the refusing visa officer or the chief consular officer made a mistake of law in refusing an application, the lawyer should consider seeking an advisory opinion from the Advisory Opinions Division (AOD) of the State Department's Visa Office. The AOD will not review assertions that the consular officer made a mistake of fact. All advisory opinion requests are routed through the Office of Public and Diplomatic Liaison, Public Inquiries Division. The Public Inquiries Division reviews all requests to determine whether they involve legal questions. If the request involves a legal question, the Public Inquiries Division will obtain the record from the consulate and forward it along with the inquiry to AOD. Attorneys generally receive at least an interim response within 15 days. The response will not be the actual advisory opinion issued to the consular post but instead a summary of that opinion. Advisory opinions on interpretations of law are binding on consular officers, but consular officers have exclusive legal authority to apply the law to the facts.
If your visa is denied, you may be confused and frustrated. But there may be strategies available to overcome the denial. A lawyer with expertise in consular processing may be able to assist in pursuing reconsideration or resubmission of an application, supervisorial review at the consular post, an advisory opinion, judicial review, a waiver, or other strategies. Please call my immigration law office in New York for further help.