Visa Denials
U.S. law generally requires visa applicants to be interviewed by a consular officer at a U.S. Embassy or Consulate. After relevant information is reviewed, the application is approved or denied, based on standards established in U.S. law.
While the vast majority of visa applications are approved, U.S. law sets out many standards under which a visa application may be denied.
An application may be denied because the consular officer does not have all of the information required to determine if the applicant is eligible to receive a visa, because the applicant does not qualify for the visa category for which he or she applied, or because the information reviewed indicates the applicant falls within the scope of one of the inadmissibility or ineligibility grounds of the law. An applicant’s current and/or past actions, such as drug or criminal activities, as examples, may make the applicant ineligible for a visa.
If denied a visa, in most cases the applicant is notified of the section of law which applies. Visa applicants are also advised by the consular officer if they may apply for a waiver of their ineligibility.
I Have Just Been Denied an Immigrant/Non-Immigrant Visa. What Should I Do?
After being found ineligible for a visa, you may reapply in the future. If you reapply for a visa after being found ineligible, with the exception of 221(g) refusals, you must submit a new visa application and pay the visa application fee again. If you were found ineligible under section 214(b) of the INA, you should be able to present evidence of significant changes in circumstances since your last application.
Can I Appeal Against the US Embassy’s Decision Not to Grant Me a Visa?
Yes, a US Federal Court may review a decision of a US Embassy or Consulate in a very narrow set of circumstances.
What Is the Appeal Process?
In order to be able to appeal a visa denial, you must firstly make sure that the country you wish to visit offers such an opportunity to those rejected. Usually, when you get the response on your visa application decision, in case you are rejected you will get the reason why and whether you can appeal this decision or not.
If you do not obtain any information of this kind upon receiving a negative response on your application, contact the embassy and ask if you can appeal their decision. In case they say no, you will have to reapply for a visa. This time, try to avoid the ‘mistakes’ you did in the first application, and improve your situation, in order to make sure you will not get rejected again.
If you would like to begin an appeal process for visa refusal, then you will need to begin by writing an appeal letter. An appeal process is a legal proceeding that assesses why you were denied a visa and what your options are.
Ordinarily, there is no appeal process for visa refusals at the Embassy. Under the doctrine of “consular non- reviewability”, a person cannot even sue the embassy or appeal their visa refusals in US federal courts. The US Supreme Court ruled the Embassy is not even required to provide a “detailed explanation” of the reasons for the visa refusal.
So what can a person do if their visa was refused, and they believe the consul’s decision was wrong? There could still be hope. It is possible, in some limited situations, to seek reconsideration from the Embassy or to “appeal” a visa refusal to the US State Department in Washington DC. The limited situations deal with whether the consul’s “interpretation or application of immigration law” was correct. The State Department will only entertain requests for reconsideration involving legal issues, not factual determinations.
Where Do I File an Appeal?
If you are convinced that the decision on your case was unjust, and you really need to get that visa, then you are highly recommended to appeal. How you write the appeal letter is very important. Your letter should be argumentative and convincing. Do not rather write an emotional one, in hope that you will touch the heart of the official that will deal with your file. It will not work!
There is not a fixed way on how you should write your appeal letter.
Firstly, you should include information about you in the letter, including your:
- Name & Surname
- Passport Number
- Full address
- Date of Birth
- Place of Birth
- Email
- Phone Number
Aside of this information, further in the text you should:
- State when you filed your application as well as the purpose of your trip
- State the date when received the visa denial decision.
- Explain the reasons why your visa was refused, as given in the rejection letter you got from the embassy (if you did)
- List and explain the reasons why you believe the rejection was incorrect, showing arguments
- Do not forget to put your signature at the end of the letter, after you print it
In case you do not know where to submit your appeal letter, you should contact the embassy of the country you wish to visit for explanation in this regard. In general, the embassy itself receives the appeals.
How Do I Appeal To USCIS or the US Embassy?
Upon the submission of your visa refusal appeal letter, the embassy will pass it on to the right appeal processing body of that country. A higher-ranked officer responsible for dealing with visa appeals will look at your letter and take a decision on whether your visa application refusal shall be reversed or not.
The time that the responsible body needs to take a decision on your appeal varies. It is in their responsibility to inform you on this decision, as well as the steps you may need to take further.
Most appeals are filed using Form I-290, Notice of Appeal or Motion but there are some exceptions:
- Appeals of decisions on an N-400, Application for Naturalization, are made on Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings Under Section 336.
- Appeals of decisions of special immigrant worker and legalization applications and termination of lawful temporary resident status under sections 210 and 245A of the Immigration and Nationality Act are made on Form I-694, Notice of Appeal of Decision Under Sections 245A or 210 of the Immigration and Nationality Act.
- Appeals of decisions on an I-130, Petition for Alien Relative, or other decisions that are appealed to the BIA, are filed on Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer with the office that made the decision on the petition.
How Much Time Do I Have to File an Appeal?
Generally, you must file an appeal within 30 days from the date of the decision (not the date you received the decision). A shorter appeal period may apply to some cases such as the revocation of the approval of a petition, which has a 15-day deadline. Your decision will tell you how long you have to file the appeal.
There is no extension to this deadline. However, an extra 3 days is provided when your decision is mailed to you (33 days in the case of denial and 18 days in the case of revocation).
What Happens When I File an Appeal to USCIS or the US Embassy?
If the court finds that the decision was made incorrectly, the application will be returned to the visa office and will go back into processing for a different officer to make a decision. Even if the applicant won at the Federal Court, the application could still be refused for a different reason.
When Should I Expect to Receive a Decision on an Appeal to USCIS or the US Embassy?
The AAO (Administrative Appeals Office) strives to complete its appellate review within 180 days from the time it receives a complete case file after the initial field review. Some cases may take longer than 180 days due to factors beyond the AAO's control.
May I Request a Waiver of the Filing Fee for My Appeal?
Yes, you may request a waiver of the filing fee for your appeal. DHS regulations, at 8 CFR 103.7(c), specify some cases in which USCIS can waive a filing fee based on inability to pay. If USCIS can waive the filing fee for the underlying petition or application itself, or if it had no fee, USCIS can also waive the filing fee for the motion.
What is the Doctrine of “Consular Non-Reviewability”?
Consular non-reviewability refers to the doctrine in immigration law in the United States where the visa decisions made by United States consular officers (Foreign Service Officers working for the United States Department of State) cannot be appealed in the United States judicial system.
