By Attorneys Robert L. Reeves and Jeff L. Khurgel
Applying for an Immigrant Visa at a U.S. Embassy abroad can be an intimidating and stressful process. Aspiring immigrants wait years or sometimes decades for their interview date. During the interview, some applicants are approved and will enter the U.S. as immigrants, while others are refused visas for a variety of reasons. Experiencing a visa refusal can be confusing and frustrating, or at worst, humiliating. Consular officers are dedicated U.S. diplomats, but their heavy work load and legitimate national security concerns often outweigh their ability to properly explain a denied applicant’s options.
The doctrine of consular non-reviewability holds that consular officers have un-reviewable discretion to grant or deny visas. While such absolutism discourages many applicants from further pursuing their legitimate immigrant visas, there are options that all refused visa applicants should be aware of.
Section 221(g) Visa Refusal
The most common visa refusal scenario stemming from an Immigrant Visa interview is a refusal under Section 221(g) of the Immigration and Nationality Act. Such a refusal can be more adequately characterized as a “continuance”. When an officer refuses a visa under this section, the officer typically does so because additional documentation or information as to an applicant’s eligibility is needed. At the conclusion of the interview, the officer will issue a letter indicating what is required. If the applicants adequately comply with the officer’s request, the refusal is often overcome.
Other 221(g) scenarios may involve the discovery of adverse information about the applicant by the consular officer, which may require a well documented waiver of inadmissibility prior to the granting of a visa. If a case is continued under 221(g) for the purpose of further “administrative processing” this usually indicates that required security clearances are still pending.
Request for Reconsideration
While consular decisions are non-reviewable, it is important to remember that all consular officers do not think alike. After a careful review of the facts and circumstances surrounding a visa refusal, a request for reconsideration of the visa refusal may be appropriate. If so, the refused applicant is permitted one year from the date of the denial or refusal in which to request reconsideration without the need for the filing of a new application or fee. Motions to Reconsider before the consular officers should be professionally presented, and include all relevant legal explanation and documentary evidence.
Administrative Review (Advisory Opinion)
Where reconsideration is not enough to overcome a denial, administrative review may be necessary. The Department of State’s Visa Office in Washington D.C. reviews visa denial decisions based on questions of law. Advisory opinions can be sought for reasons including interpreting law as to admissibility, and clarifying proper visa classification. The decisions of the Visa Office are binding on Consular Officers around the world.
Consular non-reviewability has caused U.S. courts to generally refuse to review consular decisions. However, in Patel v. Reno, the Ninth Circuit Court of Appeals, held that while it cannot force a consular officer to grant or deny a visa, it can compel the government to make a decision on a long-pending visa. In the Patel case, a consular officer suspected fraud in an immigrant visa case, and suspended the case for years, leaving the applicants themselves in a state of suspense. The Ninth Circuit stated that while it could not force the officer to grant the visa, it did have jurisdiction to compel the officer to make a decision on the long-pending case.
The reasons for a visa refusal vary and the immigration law underpinning the refusals is exceedingly complex. In seeking to overcome a refusal, applicants should be represented by an immigration law firm experienced in working with U.S. Embassies around the world. A thorough consultation with an experienced firm will provide a refused applicant with an understanding of the relevant issues involved in the refusal of an immigrant visa, and the possibility for a favorable outcome.
Processing of Immigrant Visas at U.S. Embassies is a featured topic of “The Immigration Experts”, Reeves & Associates’ new immigration-based television program. Episodes are available for viewing on KSCI-18 Television in Los Angeles, San Diego and San Bernardino and KTSF-26 in the San Francisco Bay Area on Sundays at 4:30 PM. Episodes are also available for viewing on www.immigrationexperts.tv