Chodorow Law Offices
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?
Visa processing at U.S. embassies and consulates is a subspecialty within immigration law which is critically important but often neglected even by immigration lawyers. Lawyers may shy away from visa processing for several reasons. 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. Our firm uses opportunities that exist under law to present visa applications as persuasively as possible to consular officials and to obtain review of visa denials to the extent allowed by law.
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This article begins by explaining the grounds for visa refusals and the related notification which the consular officer should provide. Then, the article discusses requests for reconsideration or resubmission applications, supervisorial review at the consular post, advisory opinions from the Visa Office, judicial review, waivers, and other strategies for overcoming 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.
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, see https://lawandborder.com/proving-nonimmigrant-intent/ .
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:
An applicant will be considered to have “overcome” a 221(g) refusal where the applicant been issued the visa upon presenting additional requested evidence or upon completion of administrative processing.
Once a visa application has been properly submitted, a consular officer must either approve or refuse the visa. A visa can be refused only upon a ground specifically set out in the law or regulations. The officer should notify the applicant of the refusal.
The consular officer is required to provide timely notice of the decision to an applicant when a visa is denied. The notice should
The requirement to notify the applicant of the grounds of refusal is subject to the following statutory exceptions:
Despite those statutory exceptions, the Department of State still expects that written notices will still be provided to the applicant unless the consular officer has received specific approval from the Department not to provide a notice in a specific case or group of cases. The Attorney General has mandated that “an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information.” When posts explain the basis for refusal, certain information is not releasable by the consular post:
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.
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.
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.
The Supreme Court has developed a doctrine of “consular nonreviewability,” which dictates that that courts generally have no power to review decisions of consular officers. The principle justification for this doctrine of “consular nonreviewability” is the corollary principal of “plenary power,” which holds that the Constitution grants Congress and the President extremely broad power of the admission and exclusion of noncitizens, which leaves little power for the courts. There are a few limited exceptions where court challenges have been allowed. One line of cases, beginning with the 1972 Kleindienst v. Mandel decision, assumes or holds that there is an exception to consular nonreviewability in cases where denial of the noncitizen’s visa impacts a U.S. citizen’s fundamental rights, requiring that the State Department provide a “facially legitimate and bona fide” explanation for denial of a visa. The citizen’s rights which give rise to this review may include First Amendment rights to hear even unpopular perspectives from noncitizens invited to speak and liberty rights to live with noncitizen relatives in the U.S. In another line of cases, the courts may see fit to intervene where the consular officer has failed to issue any decision on an application. In Patel v. Reno, the Ninth Circuit Court of Appeals held that there is mandamus jurisdiction to compel a consular officer to make a decision on a visa application. In that case, the wife and children of a naturalized U.S. citizen were the beneficiaries of an approved immigrant petition that was forwarded to the U.S. consulate. The consular officer, suspecting that the U.S. citizen husband was naturalized under false pretenses by marrying an American citizen while still being married to his wife in India, returned the immigrant petition back to the INS for further investigation and suspended action on the visa applications. It its decision, the Court acknowledged that “[n]ormally a consular official’s discretionary decision to grant or deny a visa petition is not subject to judicial review. However, when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken with in the consul’s discretion, jurisdiction exists.”
For nonimmigrant visa applicants, INA § 212(d)(3) allows for waivers of most grounds of inadmissibility. For immigrant visa applicants, there are waivers of the health-related grounds of inadmissibility, inadmissibility for fraud or misrepresentation, false claims to U.S. citizenship, criminal grounds of inadmissibility, the J-1 foreign residence requirement, the unlawful presence grounds of inadmissibility, communist or totalitarian party membership or affiliation, etc. This article will briefly address nonimmigrant visa waivers, immigrant visa waivers for fraud or misrepresentation, and waivers for unlawful presence.
An individual denied a visa under almost any ground of inadmissibility of INA § 212(a) (with the exception of security grounds) can be granted a waiver as a matter of discretion under INA § 212(d)(3). This waiver is a “powerful tool to address some extremely rigid immigration restrictions.” The waiver procedure requires obtaining a recommendation by the consular officer and an approval by the U.S. Customs and Border Protection Admissibility Review Office (ARO). The requirements for the waiver are that: (a) the ground of inadmissibility must be one that can be waived under INA § 212(d)(3); (b) the applicant meets the requirements for the particular nonimmigrant visa, including the nonimmigrant intent requirement, if applicable; and (c) the applicant merits a favorable exercise of discretion. The decision whether to grant a waiver as a matter of discretion is based on the totality of the facts. In particular, the following three factors are relevant: recency and seriousness of the activity or condition causing the inadmissibility; the reasons for the proposed travel to the U.S.; and the positive or negative effect, if any, of the planned travel on U.S. public interests. There is no required form for the waiver application. The contents of the waiver application typically include, but are not limited to,
If ARO approves the waiver, the consular post will issue the visa, which will contain an annotation that it has been issued pursuant to section 212(d)(3). The visa will not be valid for a period longer than the waiver.
An applicant denied an immigrant visa for fraud or misrepresentation may be eligible for a waiver under INA § 212(i). To qualify for the waiver, the applicant must establish that his or her U.S. citizen or permanent resident spouse or parent would suffer extreme hardship if the applicant were denied admission. (The waiver is not available based on extreme hardship to the applicant’s child.) In addition to the equities presented and the extreme hardship to the family member, USCIS may consider the seriousness of the fraud or misrepresentation. The factors to be considered in determining whether a qualifying relative would suffer extreme hardship if the applicant were denied admission include: the presence of permanent resident or U.S. citizen family ties both within and outside the United States; the conditions in the country to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to that country; the financial impact of departure from the United States; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. A waiver application is filed with USCIS on Form I-601, Application for Waiver of Grounds of Inadmissibility, and should include the following, among other things:
If USCIS approves the waiver, the consulate will schedule another interview for final adjudication of the visa application. If USCIS denies a waiver application, the applicant can file an appeal to the Administrative Appeals Office (AAO) within 30 days of the decision. No judicial review is available.
The three- and ten-year bars on admissibility for persons previously unlawfully present in the United may be waived for an immigrant visa applicant if USCIS determines that refusing admission to the applicant would result in extreme hardship to a U.S. citizen or permanent resident spouse or parent. (The waiver is not available based on extreme hardship to a child.) The standard application procedure is similar to that described above for the waiver of fraud or misrepresentation. But since March 4, 2013, there has been an alternative procedure for certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens. They can apply for provisional unlawful presence waivers before they leave the United States for their consular interview. This new process was developed to shorten the time that U.S. citizens are separated from their immediate relatives while those family members are obtaining immigrant visas to become lawful permanent residents of the United States. The new process also gives applicants considering leaving the U.S. to apply for the visa abroad some confidence they will qualify for the waiver and visa. Most recently, on July 14, 2015, USCIS has proposed expanding eligibility for provisional waivers of the unlawful presence bars to all applicants who are statutorily eligible and applying for an immigrant visa. This would include applicants who are immediate relatives of permanent residents. This proposal has not yet been implemented.
There are other ways for a lawyer to contact the State Department to question a consular officer’s action or inaction. The National Visa Center (NVC) answers telephone requests for general information about nonimmigrant and immigrant visas cases. If action (for example, administrative processing) appears to be taking too long, a telephone call to the NVC may trigger an e-mail from NVC to the post inquiring about the status of the case. This is not a method to question or challenge a visa refusal.
The American Immigration Lawyers Association schedules regular meetings with the Visa Office. Lawyers may submit problems, issues, and complaints to the chair of the AILA/VO Liaison Committee.
Humanitarian parole is an extraordinary measure, used sparingly to bring someone, who otherwise would not be admissible to the United States, for a temporary period of time due to urgent circumstances or a compelling emergency. USCIS may grant parole temporarily if there are urgent humanitarian reasons or if there is a significant public benefit. The period of parole will correspond with the length of the emergency or humanitarian situation. Requests for initial humanitarian parole can only be accepted for individuals who are currently outside the United States, though once granted, the parolee may request an extension from within the United States. The decision to grant humanitarian parole is discretionary. Parole is not an immigration benefit akin to a visa or green card, nor can it be used to circumvent normal visa processes and timelines. Parolees are not authorized to work in the United States and must depart the U.S. on or before the expiration of parole as indicated on Form I-94, Departure Record. Supporting documentation to be filed with USCIS includes, among other things, evidence of the urgent humanitarian reasons or significant public benefit justifying the parole and an explanation as to why the applicant cannot obtain a visa.
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. Contact our law firm to schedule a consultation.
I am a naturalized U.S. citizen. My wife is a Syrian national, has a bachelor’s degree in chemistry from Damascus University, and is now a housewife. She has applied for an immigrant visa based on our marriage. At the U.S. Embassy in Kuwait, the consular officer told her that she was denied the visa under section 212(a)(3)(B). What should I do?
Section 212(a)(3)(B) is a broad ground of inadmissibility for “terrorist activities.” It covers people who are members of terrorist organizations or other organizations that endorse or espouse terrorist activity, as well as individuals who endorse or espouse terrorist activity, and individuals who provide material support to or solicit funds or other things of value for a terrorist organization. There are certain exceptions and waivers. The goal would be to find out specifically why the Embassy thinks your wife is inadmissible and then to see if it’s possible to rebut the Embassy’s conclusion. These are challenging cases, but an our firm or another immigration attorney may be able to assist.
Hi, my husband previously lived in the US where we married and unfortunately commited a drugtraficking soon after that felony which has made our family have to live abroad after his deportation – 16 years ago. After so many years and having an honest lifestyle , working as a teacher now and having not any kind of criminal records elsewhere, I have petioned for a visa for him to travel back to the US with me and our son being that I as well as the rest of his family members live in the US and are all citizens and have been denied the visa , the consular stating because he has previously committed a felony.
Isn’t there a second chance taking into account that I as well as our son are US citizens and we are a family, and all our other family members from mothers to siblings and son on are in the US and we would like to and need to be back with them all as well as our son having the chance to live and study in the US.
Please help me, I beg you.
Maureen: Sorry to hear about the trauma your family has been through. You may want to show the waiver application you filed to our law firm or another experienced immigration attorney to get an opinion about your options in the case.
Hi. I am a naturalized US Citizen. I petitioned for my mom living in Jamaica. She was denied under section 212(a)(6)(c) three days ago 12/29/15. The consulate stated that no waiver is available for this filing. My mom has declared that she didn’t attempt to commit fraud. She was issued group visa in 97. She didn’t understand that she could not travel alone. Thus she booked travel to visit an uncle in New York. DHS denied her entry into the US. This appeared as fraud on her record which came back to haunt her nearly 20 years later. What is our recourse, if any.
Kirkland: Talk with our law firm or another qualified immigration attorney about using the Freedom of Information Act to get DHS records related to the denial of your mother’s entry to the U.S. Those records may clarify whether DHS had a valid basis to determine that your mother made a material misrepresentation.
Hi, I am a naturalized U.S.citizen. I filed a Form I-130, Petition for Alien Relative, for my wife, which was approved by USCIS. But the U.S. embassy abroad denied her visa. The officer determined that our marriage is a sham. What are my options? Do I have to reapply? Can I appeal?
Abdul: U.S. Citizenship and Immigration Services (USCIS) has exclusive authority to adjudicate I-130s. So based on your description, perhaps the consular officer suspended action on the visa application and returned the petition to USCIS with a report of the facts related to the officer’s suspicions of a sham marriage. Once the petition is returned by the consular officer, any consular actions on the case would be frozen. Upon receiving these materials, the USCIS adjudications officer may issue a Notice of Intent to Revoke requiring you 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. There is no “appeal” of the consular officer’s decision. Talk with our firm or another qualified immigration lawyer about the best course of action in your case.
Hi, I am an F1 visa holder, studying in Masters program in the United States. I am doing CPT as part of my masters program. My wife recently applied for F2 visa for her and my 3 children at the U.S. Embassy abroad. The application was first put on administrative processing and after 14 days, application was refused under sections 212(a)(6) C I and 214(b). I have no clue why they have put on misrepresentation charge as only the most accurate information was provided in the application and interview went great as well. What options do I have in this situation if there are any? Thanks!
As explained above, unless certain exceptions apply, the consular officer should notify an applicant of the factual basis for denial (except in certain unusual circumstances). So it’s time to retain an immigration lawyer experienced in consular issues to ask the consular officer to divulge the factual basis for denial. Once that’s known, a further strategy can be devised, such as challenging the 212(a)(6)(C)(I) denial or applying for a waiver.
Thank you so much for the information you provided. This will be very helpful.
I am a Peace Corps volunteer serving in Albania. I am leaving the country and returning to the US for one month before moving to Thailand. My girlfriend, who is Albanian, was just denied a tourist visa under 214(b), the reason given that they believe she does not have sufficient cause to return to Albania. She is in the middle of a graduate program in Albania, which does not conclude until 2017, and her entire family is in Albania. I am not sure what more should be needed in such a case, and they have not told her what more is needed. I also wrote an invitation letter, but that was apparently not enough. We are reapplying. Do you have suggestions for what more she could do? Thank you!
The majority of applicants denied tourist visas don’t consult immigration lawyers. But if your girlfriend were to consult with a competent immigration lawyer, the lawyer would likely take time to learn about her immigration history, such as: reviewing the Form DS-160, Nonimmigrant Visa Application, she which she filed; asking for a transcript of the Q&A with the consular officer; and reviewing the invitation letter and other documents presented to the Consulate. If it’s not clear why the visa application was denied, the immigration lawyer might ask the U.S. Consulate for more details. Based on that review, the lawyer would likely work with your girlfriend to develop a strategy to overcome the basis for denial. Right now, without that detailed understanding of your girlfriend’s immigration history, any guess about why she was denied or advice about how to overcome the denial would be mere speculation.
My application for a tourist visa was denied. The denial notice refers to 212(a)(6)(C)(1). Is this denial permanent? I am about to get married to a US citizen who works for the military. I want to know the best and fastest way I can be with him.
Kat: It sounds like the consular officer denied your visa on the grounds that you have made a misrepresentation to U.S. immigration authorities. Sometimes the consular officer’s decision can be challenged as incorrect. Otherwise, that is a permanent ground of visa ineligibility. See part 6.2 above for information about immigrant visa waivers for misrepresentation. You and your fiancée should discuss that and other options with a competent immigration attorney.
I’m a US citizen. My wife’s IR1 visa got refused by the US embassy because they stated that we are first cousin and the state I live in doesn’t recognize first cousin marriage. But the country we got married in does recognize first cousin marriage. Now the embassy is sending my wife’s application back to USCIS. What should I do?
To be valid for immigration purposes, a foreign marriage must not be contrary to U.S. public policy. Even if a marriage between parties related by blood is recognized as valid where the marriage took place, it may be invalid as contrary to public policy if the marriage would be illegal in the state where the parties intend to reside. See Susan Fortino-Brown, Family-Sponsored Immigration, in AILA, Navigating the Fundamentals of Immigration Law 307 (2009-2010), citing Matter of Da Silva, 15 I. & N. Dec. 778 (BIA 1976) (out-of-state marriage of uncle and niece does not violate New York public policy; this marriage is valid for immigration purposes); Matter of T-, 8 I. & N. Dec. 529 (BIA 1960) (same result in Pennsylvania); Matter of E–, 4 I&N Dec. 239 (BIA 1951) (even though California prohibits that type of marriage, it did not actively prosecute when the marriage was lawfully contracted abroad; thus the marriage was valid for immigration); Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) (Wisconsin will consider void a marriage contracted in another state when it was contracted elsewhere to avoid Wisconsin’s prohibition of such marriages; thus, marriage not valid for immigration purposes).
So I recommend that you consult with our firm or another competent immigration attorney to analyze the law of the state where you and your wife told USCIS (in the I-130 and DS-260 forms) you intend to reside together. Based on that, the attorney can help you decide among options such as fighting to affirm the I-130 being returned to USCIS, filing a new I-130, and/or moving to a different state.
I am a U.S. Citizen. My mother is applying for a tourist visa, but previously she was found ineligible for a visa under section 212(a)(6)(C)(i) due to misrepresentation. Is there any way she can get a waiver for a temporary tourists visa?
Cesar: See Part 6.1 above related to section 212(d)(3) nonimmigrant visa waivers.
I am a US citizen, and my parents recently applied for immigrant visas based on my petition. At their interview in London, they were denied the visa under Section 212(a)(6)(c)(1) related to misrepresentation. I’m not sure what the supposed misrepresentation was. They did enter the US on visitor’s visas and overstayed from 1991 to 2005 before leaving voluntarily. How can I find out what the supposed “misrepresentation” was, and is there anything else that can be done?
As mentioned above, the consular officer is generally required to disclose the factual basis for the refusal. Our law firm or another competent immigration lawyer can investigate the factual basis for the refusal and discuss with you whether the denial can be challenged or whether a waiver is available.
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