Visa Refusals and Avenues to Respond

 

Introduction: Visa Refusals at U.S. Consulate

visa refusalVisa applicants must apply to obtain a visa at the appropriate U.S. consulate. Consular officers may refuse a visa if it believes that the applicant is ineligible for his or her visa under the Immigration and Nationality Act (INA). Visa refusals may be issued on account of an applicant being ineligible under sections 212(a) [inadmissibility], 214(b) [failure by nonimmigrant visa applicant to establish nonimmigrant intent], or 221(g) [failure to fully complete visa application or provide all supporting documentation] of the INA. This article will use the statutes, regulations, and the Foreign Affairs Manual (FAM) to explain the grounds on which consular officers may refuse a visa. We will explain different options available to visa applicants legal or regulatory ground(s) underlying the refusal.

Consular Authority

Section 104(a) of the INA vests consular officers with the power to grant or refuse visas. There is no statutory protocol for administrative or judicial review of the decision of a consulate to refuse a visa.

Section 221(g) of the INA gives consular officers the power to refuse a visa if there is reason to believe any of the following:

  • That the alien is inadmissible;
  • That the alien is not entitled to the visa that he or she seeks;
  • That the alien fails to establish nonimmigrant intent; or
  • That the alien fails to provide all of the required documentation to establish eligibility for the visa sought.

9 FAM 301.1-2 instructs that consular officers may only refuse a visa when relying “upon a ground specifically set out in law or implementing regulations.”

Visa Refusal Procedures

The regulations regarding the procedures for the refusal of nonimmigrant visas are found in 22 C.F.R. 41.121. The regulations regarding the procedures for the refusal of immigrant visas are found in 22 C.F.R. 42.81.

In both cases, consular officers are required to notify the applicant of the grounds of refusal and whether there is a mechanism for overcoming the refusal. There is a limited exception from this rule if disclosure is barred under section 212(b)(2) or (3) of the INA for security reasons.

Procedural Specifics for Nonimmigrant Visa Refusals

22 C.F.R. 41.121(c) explains that the refusal of a nonimmigrant visa must be reviewed by consular supervisors or a designated alternate. If the grounds for refusal cannot be overcome by the presentation of additional evidence, the refusal must be reviewed immediately. If the grounds of ineligibility for the visa may be overcome by the presentation of additional evidence, and the applicant indicates that he or she intends to submit the requisite evidence, the review of the refusal cannot be deferred for more than 120 days.

22 C.F.R. 41.121(b)(2) explains that if an alien who has not yet filed a visa application seeks advice from a consular officer, and the consular officer knows or has reason to believe that the alien is ineligible to receive a visa on grounds that cannot be overcome by the presentation of additional evidence, the consular officer shall inform the alien as to that fact and the provision of the law or regulations upon which the refusal would be based. If the alien does not apply for a visa, the consular officer shall treat it as if the visa had been refused and create a record of the presumed ineligibility for filing at the consular officer. However, this does not prevent the alien from formally filing a visa application.

Procedural Specifics for Immigrant Visa Refusals

22 C.F.R. 42.81(b) prevents consular officers from refusing a visa until either the Form DS-230, Application for Immigrant Visa and Alien Registration, or Form DS-260, Electronic Application for Immigrant Visa and Alien Registration, has been executed by the applicant.

After refusing an immigrant visa, consular officers are required to make a record of all of the documents related to the refusal, and to return documents not related to the refusal to the applicant. If the applicant may overcome the ground(s) of ineligibility by submitting more evidence, and if he or she indicates a desire to submit such evidence, the consular officer may, with the consent of the applicant, retain all documents in the consular files for up to one year.

22 C.F.R. 42.81(c) explains that if the ground(s) of ineligibility cannot be overcome by the presentation of additional evidence, a supervisor must review the decision to refuse immediately. If the ground(s) of ineligibility can be overcome by the presentation of additional evidence, and if the applicant indicates the intention to submit such evidence, the review of the refusal may be deferred.

22 C.F.R. 42.81(e) explains that if the applicant submits evidence to overcome the ground(s) of refusal within one year from the date of the refusal, the case shall be reconsidered and the applicant will not be required to pay additional fees for the reconsideration.

Advisory Opinions

The Department of State's (DOS's) Visa Office Advisory Opinions Division (AOD) may issue legal opinions to consular officer. There are certain circumstances wherein an officer is required to obtain an advisory opinion, such as if he or she intends to invalidate an approved labor certification or refuse a visa for fraud or misrepresentation of a material fact. Consular officers may request advisory opinions in their own discretion. Furthermore, counsel for a visa applicant or an interested party may request an advisory opinion on a legal issue presented in the adjudication.1

Both 22 C.F.R. 41.121 and 22 C.F.R. 42.81 explain that while advisory opinions are binding on consular officers as matters of law, they are not binding on the consular officer's application of the law to the facts of a specific case.

Judicial Review

There are no grounds for judicial review of visa refusals. However, courts have found jurisdiction to review claims brought by U.S. citizens regarding consular refusals when the constitutional rights of the U.S. citizen are implicated.2

Discovery of Visa Ineligibilities

9 FAM 301.5-2 discusses how grounds of ineligibility for visas are discovered by consular officers. The FAM lists the following three methods:

  1. From applicants, through the application for and supporting documents or during the interview;
  2. From U.S. government sources, including other agencies or posts; or
  3. From third parties.

The FAM notes that the underlying reasons prompting the finding of ineligibility should weigh in whether the consular officer finds that the applicant meets the requirements for a waiver, and if so, if recommending a waiver is appropriate.

Refusal for Inadmissibility to the United States and Waivers

A consular officer will refuse a nonimmigrant or immigrant visa if the applicant is believed to be inadmissible under any provision of section 212(a), (e), (f), or (l) of the INA.

9 FAM 301.4-2 lists the provisions of section 212 of the INA that are inapplicable to nonimmigrant visa applicants:

  1. Sec. 212(a)(1)(A)(ii) — relating to vaccinations (note that nonimmigrants may be found inadmissible on other health-related grounds).
  2. Sec. 212(a)(3)(D) — immigrant membership in or affiliation with Communist or other totalitarian parties.
  3. Sec. 212(a)(5) — relating to labor certification for immigrants.
  4. Sec. 212(a)(7)(A)(i) — relating to immigrant documentation requirements.
  5. Sec. 212(a)(8)(A) — relating to immigrant ineligibility for citizenship due to desertion, draft evasion, or exemption from military service.
  6. Sec. 212(a)(10)(A) — relating to immigrants who are practicing polygamists.

9 FAM 301.4-2 lists the provisions of section 212 of the INA that are inapplicable to immigrant visa applicants:

  1. Sec. 212(a)(7)(B)(i) — relating to nonimmigrant documentation requirements.
  2. Sec. 222(g) — relating to place of application for applicants with previous overstays of nonimmigrant visas.

It is incumbent on the applicant for a nonimmigrant or immigrant visa to establish that he or she is admissible to the United States and that he or she otherwise qualifies for the type of visa that is sought. 22 C.F.R. 40.6 states that “the burden of proof is upon the applicant to establish eligibility to receive a visa under INA 212 or any other provision of law or regulation.”

Nonimmigrant Waivers

If a nonimmigrant is found to be inadmissible to the United States, he or she may seek a waiver under section 212(d)(3) of the INA if it is available for the specific ground of inadmissibility.

In order to apply for a 212(d)(3) waiver, the applicant must receive a recommendation for the waiver from the consular officer. 9 FAM 305.4-3 explains the situations in which a consular officer can recommend a waiver:

  1. The applicant is not inadmissible under section 214(b) [relating to immigrant intent];
  2. The applicant is not inadmissible under certain security grounds;
  3. The applicant is not seeking a waiver of nonimmigrant documentary requirements under 212(a)(7)(B) [relating to lacking a valid, unexpired passport or travel document]; and
  4. The applicant is otherwise qualified for the nonimmigrant visa he or she is seeking.

It is crucial to remember that a waiver will only be recommended if the applicant is eligible for the visa notwithstanding the ground of inadmissibility that he or she requires a waiver for. The FAM lists factors that consular officers should consider for an applicant who meets the threshold eligibility requirements for a waiver:

  1. The recency and seriousness of the activity or condition causing the alien's inadmissibility;
  2. The reasons for the proposed travel to the United States; and
  3. The positive or negative effect, if any, of the planned travel on U.S. public interests.

Consular officers are instructed to recommend waivers for applicants who were previously granted a waiver for the inadmissibility ground in the past unless there is new derogatory information, a material change in the purpose of the trip, or other material changes or factors to be considered in determining eligibility for a waiver.

If a consular officer decides to recommend a waiver, he or she will send the waiver request to the Customs and Border Protection (CBP) Admissibility Review Office (ARO). If the applicant is pursuing a K or V visa, the recommendation will be sent to United States Citizenship and Immigration Services (USCIS).

If a consular officer declines to recommend a waiver, the applicant may insist on pursuing a waiver anyway. In this case, the consular officer will be required to submit an advisory opinion to the DOS for review. The advisory opinion will include the consular officer's reasons for not suggesting a section 212(d)(3) waiver.

Immigrant Waivers

Various waivers are available for immigrant visa applicants based on the specific ground of inadmissibility. Immigrant visa applicants must file waiver requests on the Form I-601, Application of Waiver for Ground of Inadmissibility with the United States Citizenship and Immigration Services (USCIS). A consular officer will merely forward such a waiver request to DHS for consideration, and will not make a recommendation.3

Depending on the ground(s) of inadmissibility, the applicant may request a 212(e) waiver [for the 2-year home residency requirement for J visa exchange visitors], 212(g) waiver [from medical grounds of inadmissibility], 212(h) waiver [certain criminal activity], or 212(i) waiver [for fraud or misrepresentation of a material fact in order to obtain immigration benefits].

With regard to 212(h) and 212(i) waivers specifically, 9 FAM 305.4-5 instructs consular officers to instruct applicants to submit the Form I-601 to USCIS. After the Form I-601 is submitted, the consulate will take no further action until USCIS reaches a decision.

Immediate relative visa applicants may apply for unlawful presence waivers. USCIS has created a process by which certain immediate relatives may have an unlawful presence waivers pre-adjudicated in the United States before an immigrant visa interview at a consulate. This is called a provisional unlawful presence waiver.

Refusal for Failure to Establish Nonimmigrant Intent (for Nonimmigrants)

9 FAM 302.1-2 explains that refusals due to the failure to establish nonimmigrant intent as required by section 214(b) of the INA are the most common refusals for nonimmigrant visas.

Section 214(b) of the INA requires the presumption that an applicant for a nonimmigrant visa has immigrant intent. However, H1B, L, R, and V visa applicants are exempt from the presumption of immigrant intent. The burden is on the applicant to demonstrate that he or she does not have immigrant intent.

Consular officers must look at the requirements for the specific category in determining whether the applicant has met his or her burden for establishing nonimmigrant intent. For example, a F1 student visa applicant may be refused for lacking sufficient funds to cover educational expenses whereas the failure to possess the intent not to abandon a foreign residence can lead to the refusal of a B1 or B2 visa. Furthermore, where immigrant intent is presumed, the mere stated intention to return abroad or having ties abroad will not by itself rebut the presumption of immigrant intent.

There is no waiver from a refusal for failure to establish nonimmigrant intent. However, the failure to establish nonimmigrant intent in one nonimmigrant visa application does not attach to subsequent applications like certain grounds of inadmissibility found in section 212. For example, an applicant may establish nonimmigrant intent for the same nonimmigrant visa category in a subsequent application, or may be eligible for a different nonimmigrant visa with similar circumstances. Furthermore, the nonimmigrant intent requirement does not apply to immigrant visa applicants.

Applicants will generally not be able to overcome a section 214(b) refusal, but may submit a subsequent application with new evidence to meet the nonimmigrant intent requirement. 9 FAM 306.2-2 explains that “The fact that a visa applicant was unable to establish nonimmigrant status at one time would not preclude such applicant from subsequently qualifying for a visa by showing a change in circumstances.”

Refusal for Submitting an Incomplete Visa Application

A visa may be refused under section 221(g) if the application does not contain all of the necessary information for the consular officer to render a decision. Accordingly, in order to overcome a refusal under section 221(g), the applicant need only submit the information required in order for the consulate to finish processing the application.

In explaining when section 221(g) refusals may be overcome, 9 FAM 306.2-2 explains the situations in which a 221(g) refusal may be issued:

  1. Additional evidence is required.
  2. Further administrative processing by USCIS is required.

In order to overcome a section 221(g) refusal for lack of evidence, the applicant must submit the evidence requested by the consular officer in the letter explaining the grounds for the refusal. A section 221(g) refusal for lack of processing will be overcome once the processing is complete and the consular officer obtains the needed information.

It is important to note that overcoming a 221(g) refusal does not mean that the visa in question will be approved, but rather that processing for the visa will be completed. Applicants have one year from the date of the section 221(g) refusal to submit the required information to the consular office.

Special Case: Refusal on Public Charge Grounds

If an application lacks the required documentary evidence to rebut the presumption of public charge (where applicable), it may be in certain circumstances refused under section 221(g) instead of section 212(a)(4). 9 FAM 302.8-2 uses the example of a Form I-864 submitted without the last year's tax returns as being a situation where the refusal should be under section 221(g). However, if the application is technically complete but the evidence is insufficient to rebut the presumption of public charge, the refusal will be under section 212(a)(4).

An applicant who is refused under section 212(a)(4) may in certain cases present sufficient evidence to overcome the presumption of public charge. In this case, a consular officer may overcome the section 212(a)(4) refusal and process the application to completion.

Conclusion: Visa Refusals at the U.S. Consulate

There are numerous factors making it very difficult and complicated to challenge visa refusals. These factors include, but are not limited to:

  • The lack of administrative and judicial review for visa refusals;
  • The specific requirements of each immigrant and nonimmigrant visa category and the number of reasons a visa may be refused;
  • That the consular office is only required to provide the legal justification for a visa refusal;
  • The widely divergent policies of different consular offices (including policies that restrict the ability of attorneys to assist their clients).4

However, it is not categorically impossible to have a visa refusal reviewed and overturned by the consulate. It is highly advised in most cases that a visa applicant retain an experienced immigration attorney in matters involving consular processing. An experienced immigration attorney will be able to study the reasons for the refusal and use his or her experience to make the best case for consular supervisors to reassess the visa refusal.

If there are no grounds to overcome the initial refusal of a visa, an experienced immigration attorney will be able to help an applicant pursue other possible avenues for relief. For example, an attorney will be able to help a nonimmigrant visa applicant submit evidence in support of a section 212(d)(3) waiver, or help an immigrant visa applicant submit the Form I-601 waiver request to USCIS. In the case of a section 221(g) refusal, an experienced immigration attorney will be able to help the applicant submit the evidence required for the final adjudication of the petition.

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  1. Poh, Elizabeth, “Advisory Opinions from the Visa Office,” The Consular Practice Handbook, (AILA 2012-2013 Ed., 2012), 75-80
  2. See e.g., Kleindienst v. Mandel, 408 U.S. 753 (1972); Din v. Kerry, 718 F.3d 856 (9th Cir. 2013); American Academy of Religion v. Napolitano, 573 F.3d 115, 123-125 (2d Cir. 2009)
  3. Cable, DOS, 05-State-066722 (Apr. 12, 2005), published on AILA InfoNet at Doc. No. 05052060 (May 20, 2005)
  4. Chan, Andrew, “The Lawyer's Role in Consular Visa Refusals, “The Consular Practice Handbook, (AILA 2012-2013 Ed., 2012) 167-93

Resources and Materials:

Chan, Andrew, “The Lawyer's Role in Consular Visa Refusals,” The Consular Practice Handbook, (AILA 2012-2013 Ed., 2012), 167-93

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 843-44, 1138-39, Print. Treatises & Primers.

Poh, Elizabeth, “Advisory Opinions from the Visa Office,” The Consular Practice Handbook, 2012-2013 ed. Washington D.C.: AILA, 2012. 75-80. Print.