By Attorneys Robert L. Reeves & Jeremiah Johnson
Immigrating to the United States can be a long and all too often frustrating process. Once a visa petition is approved and current, the procedure for obtaining the immigrant visa at a U.S. consulate is known as “consular or embassy processing.” Having an approved visa petition is one thing but having a consular officer issue the visa to the intending immigrant is another. If the consular officer refuses to issue a visa, do not despair – federal regulations provide the applicant with a number of opportunities to respond to the immigration service, rebut any derogatory evidence and ultimately revalidate the original visa petition approval.
Normally, if an intending immigrant is not found to be inadmissible, and the basis for his or her petition remains valid, the consular officer will issue the visa. However, in some instances the consular officer refuses to issue the immigrant visa pursuant to INA § 221(g). This section of the Immigration and Nationality Act is a catchall provision that provides a consular officer with broad discretionary authority to withhold a visa. Specifically, a consular officer can refuse to issue a visa if “it appears … the alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law.” Unfortunately this catchall provision has kept many family members separated from their loved ones and dashed the hopes of otherwise eligible immigrants looking forward to a better life with their family in the United States. But this need not be the case – there is a remedy to this refusal.
The first step is to try to resolve the issue at the embassy. The State Department issued a cable providing that when a case is refused under INA 221(g) then the consular officer “should explain clearly to the applicant and the attorney of record what documents or other evidence is needed, or what procedural steps need to be completed.” This explanation should afford the immigrant or his attorney an opportunity to address any concerns the consular officer may have. An attorney can also use this opportunity to submit additional information clearly establishing the validity of the petition and the admissibility of the immigrant. If the matter cannot be resolved at the consular post, then the visa petition should be returned to the United States and subject to intent to revoke/revocation proceedings.
Although the United States Citizenship and Immigration Service (USCIS) may revoke an approved visa petition for “good and sufficient cause,” federal regulations require an applicant be given notice before the visa is revoked. More specifically, the USCIS may not revoke a visa where the petitioner is unaware and has not been advised of the derogatory information that serves as the basis of the revocation. Moreover, the Ninth Circuit Court of Appeals has held that the USCIS is at a minimum required to summarize the derogatory information to at least put the applicant on notice. Via a written notice of intent to deny the USCIS is also required to provide all derogatory evidence which the USCIS has based its decision to deny. The applicant and his attorney will have an opportunity to respond to any derogatory information.
If after receiving an immigrant’s rebuttal/response to the notice of intent to deny, the USCIS may still revoke the approved visa petition. If the USCIS then revokes the visa the immigrant may file an appeal to the Board of Immigration Appeals which has jurisdiction to review decisions for all preference petitions and revalidation and revocation of those petitions. The Board will review the decision of the USCIS, including any derogatory evidence and the applicant’s rebuttal evidence submitted in the response. The United States Supreme Court has indicated that the evidence supporting the revocation must be substantial after taking into account “whatever in the record detracts from its weight.” It is important to respond to the Immigration Service and introduce evidence that “detracts from [the] weight” of the derogatory evidence. If the Board sustains the appeal, the visa petition will be returned to the consular officer who will then issue the visa to the immigrant.
Ultimately, an immigrant may need to seek relief in Federal District Court. As this article indicates, there are many steps along the way, and the USCIS may not be willing to comply with regulations that protect the immigrant and their families. If that is the case, you may have a basis for a complaint in Federal Court. Sometimes it is too important to simply take no for an answer. If a consular officer has refused to issue a visa, consult with an experienced immigration attorney.