By Attorneys Gregory J. Boult & Nancy E. Miller
Applying for an immigrant visa to the United States can be difficult and stressful. People wait months, years, and sometimes even decades, to attend their immigrant visa interviews. While many interviews lead to the issuance of an immigrant visa, others result in a shocking and disappointing denial. Receiving that denial can feel like the door to the United States has been slammed shut. Confronted with a denial, most applicants are anxious to learn if there is any action which they can take. While it is difficult to challenge the denial of an application for an immigrant visa, it is not impossible. And given that challenging a denial could mean the difference between immigrating or not immigrating to the United States, all options for challenging a denial should be immediately explored.
A consular officer who denies an immigrant visa is required to provide written notice to the applicant that specifically identifies the legal basis or bases for the denial. U.S. immigration laws are complex. Legal disputes often arise as to whether the law was correctly interpreted and applied to the facts of the case. When such a dispute arises, the law allows an individual to submit a formal written request for reconsideration to the embassy or consulate where the denial was issued. Such a request must be made within one year of the denial and must be accompanied by legal argument and supporting evidence which establishes that the denial was erroneous. If more than one year has passed since the denial, an applicant can still seek to overcome the previous denial by filing a new immigrant visa application with strong supporting documentation. The applicant will need to address the bases of the previous denial in the new application.
When a legal dispute arises which cannot be resolved at the embassy or consulate level, the applicant can seek a formal position statement (known as an advisory opinion) from Office of Visa Services (OVS) in Washington, D.C. Upon the filing of a request for an advisory opinion, the OVS will review the request and issue a formal written position regarding the legal issue in dispute. If favorable to the applicant, the advisory opinion can be utilized to seek the issuance of a new decision on the denied application. This is a powerful tool in addressing the denial of an application for an immigrant visa and one which is too often underutilized.
The ability to seek relief from the denial in United States District Court or the Court of Appeals is generally not an option for one whose immigrant visa has been denied by the U.S. Consulate. When a non-citizen’s application for adjustment of status to lawful permanent residence status in the United States is denied, s/he can generally seek redress before a Federal Judge in United States District Court. (Of course, if the adjustment applicant is placed in Removal Proceedings, s/he can also seek to renew the application before the Immigration Judge.). In most circumstances, applicants seeking an immigrant visa abroad at an embassy or consulate do not have the option of going to court. Many applicants find it difficult to understand why they are not entitled to the same rights and privileges abroad as those applicants who are actually physically present in the United States. The answer to this question lies in the long-standing doctrine of consular nonreviewability.
Courts in the United States are generally precluded from reviewing denials of applications for immigrant visas under the doctrine of consular nonreviewability. In effect, Courts in the United States have no jurisdiction to review the denial of an application for an immigrant visa because consular officers have the exclusive authority and discretion to grant or deny such applications. While the doctrine of consular nonreviewability has been longstanding, it has often been criticized because it places virtually unchecked authority in the hands of consular officers. And while it does not appear that this doctrine will be eliminated at any time in the near future, some courts have cracked open the door of consular nonreviewability at least a little. Courts have recently found jurisdiction to review actions involving consular officers’ failure to timely render a decision, and denials of visa applications involving the violation of constitutional rights.
Applicants whose immigrant visa application has been denied should know that the fight need not be over. An intending immigrant whose consular case has been denied should immediately consult with an experienced and knowledgeable immigration lawyer to explore all possible options. For many who are denied an immigrant visa, the door to the United States need not necessarily remain locked.