By Attorneys Robert L. Reeves and Devin M. Connolly
Applying for an Immigrant Visa at a U.S. Embassy can be a stressful and intimidating process. The aspiring immigrant has likely waited many years for the opportunity to come to the U.S., and they want to make certain that nothing goes wrong. Many applicants will be granted immigrant visas at the conclusion of their interviews, but unfortunately many will not.
An application for an immigrant visa might be refused for a variety of reasons. No matter what the reason, the refusal is heartbreaking to an applicant who wants nothing more than to enter the U.S. to be reunited with family members.
After the initial shock and disappointment has gone away, the aspiring immigrant may still be confused, frustrated, and even embarrassed because of the refusal. If they are not already working with an immigration attorney, it is imperative that they immediately consult an immigration attorney with experience in this area to determine if it is still possible to receive an Immigrant Visa.
Many aspiring immigrants wrongly believe that they do not have any options following the Consular Officer’s refusal to issue them an immigrant visa. They believe that U.S. Consular Officers have the sole authority to grant or deny a visa. They may also believe that the decisions of U.S. Consular Officers are final and are not reviewable. However, despite these beliefs, aspiring immigrants do have many options that one can pursue after a refusal.
The most common type of refusal of immigrant visas issued by Consular Officers is “the applicant has been unable to demonstrate that they are admissible to the U.S.” This refusal may only be a minor setback for the applicant. The applicant might be able to overcome this type of refusal simply by submitting additional documentation in support of their application.
The documents in issue may be basic types like a birth or marriage certificate, or could be more complex such as medical records or a notarized affidavit. It is crucial that the applicant submit the right documents within the required period or they risk their case being further delayed.
A Consular Officer may also refuse to issue the visa because they determine that the applicant requires a waiver before they can issue an immigrant visa. A waiver may be necessary because the applicant previously lied in an attempt to obtain a visa; they previously lived in the U.S. unlawfully; they have a prior deportation order or they have a criminal conviction. In these scenarios the applicant will not be issued a visa unless a well documented waiver application is submitted.
In this regard, an experienced immigration attorney is essential because an expert immigration attorney will know how to effectively present the evidence that will show that the applicant should be granted a waiver. While it is true that the decisions of U.S. Consular Officers are sometimes non-reviewable, it is important to remember that the officers occasionally make errors.
It is also important to remember that the opinions of Consular Officers sometimes vary. Thus, a refusal of an immigrant visa by one officer does not necessarily mean that all officers would have refused to issue the immigrant visa.
Sometimes it is advisable to file a motion to reconsider. A motion to reconsider requests a Consular Officer to review the decision because the officer made a factual or legal error when they failed to issue an immigrant visa.
The motion must clearly explain the facts of the case and include legal reasons why the refusal was in error. The motion should also include substantial documentary evidence. The applicant must be sure that the motion to reconsider is filed within the regulatory time limits or it will be denied automatically.
Finally, it may become necessary for an applicant to seek an advisory opinion from the U.S. Department of State’s Visa Office in Washington, D.C. An advisory opinion may become necessary when a motion to reconsider is not successful.
Upon request the Visa Office will review a visa denial where the denial was based on legal grounds. It can be crucial to obtain a favorable advisory opinion because the decisions of the Visa Office are binding on Consular Officers throughout the world.
It is entirely possible for applicants to overcome a visa refusal, but due to the complexity of the visa process, it is essential that the applicant obtain a good immigration lawyer with experience in this area of immigration law.