Q: I was recently approved for H-1B classification including change of status. My wife and son went to the consulate for derivative H-4 visas but the consular officer denied the requests. What are the requirements for a derivative H-4 visa?
A: The regulations regarding derivative classification states that “spouse and children of a principal alien classified H-1B… who are accompanying or following to join the beneficiary to the U.S., are entitled to H-4 classification and are subject to the same visa validity, period of admission, and limitation of stay as the principal alien.” The children must be younger than 21 years old. Despite the clear language in the regulations, consular officers frequently deny derivative visa requests.
Q: A written decision of the refusal was not issued nor was a specific reason given to support the denied derivative visas. Are consular officers required to provide reasons for denials?
A: Yes, in a State Department memo to U.S. Embassies and Consulates, consular officers are reminded that they must inform applicants, orally and in writing, of the law upon which a refusal is based. It is also State Department policy that consul officers should explain the factual basis for a denial.
Q: Can decisions of a consular officer be appealed?
A: Decisions of U.S. consular officers are generally not reviewable by U.S. courts. However, there are remedies available to aliens with visa refusals. The appropriate course of action will depend on the particular facts of each case including the grounds for visa refusal. Possible options may include a motion to reconsider; request for supervisory review; applying at another consulate; or requesting an advisory opinion from the State Department.
Q: Why do consul officers deny nonimmigrant visa applications?
A: There are several reasons why consular officers deny nonimmigrant visa applications. Most denials are based on an officer’s belief that an alien wants to reside permanently in the United States. If an applicant cannot produce sufficient evidence that he or she will return to the home country when the nonimmigrant visa expires, then the visa request will be denied.
However, certain nonimmigrant work visas such as H-1B and L-1 incorporate the doctrine of “dual intent” which essentially prohibits consular officers from denying such visas for lack of significant ties to the home country. Other grounds for visa refusal include insufficient documentation and inadmissibility.
Q: What advice would you offer nonimmigrant visa applicants?
A: It is critically important to understand that a visa denial can create a permanent blemish on an alien’s immigration record. Consular officers are required to make a record of denials in the Automated Visa Lookout System (AVLOS), which is used by consulates and immigration officials worldwide.
When communicating with a consular officer, applicants should be polite. Approach visa problems constructively, and realize that the applicant’s perception of what occurred at the consulate may differ from the perception of the consular officer.
Applicants should not contact congressional offices to request direct intervention unless the issue concerns an abuse of power. If a consular officer is abusive or unreasonable, then a complaint can be directed to the supervisor at the Embassy or consulate.
If you or a family member are experiencing visa denial issues or plan to apply for a visa, we advise you to consult experienced immigration attorney who can discuss possible options.