India: US Visa Denial – What Are The Options Available?

Last Updated: 7 December 2016
Article by Zeenat Phophalia

A visa denial can leave an applicant confused and frustrated, particularly if the visa application presented is complete and persuasive, all interview questions are appropriately answered, and moreover, if the consular officer is unwilling or unable to explain the grounds for refusal and the options if any for overcoming the refusal. Consular officers have almost absolute authority to issue or deny a visa and applicants have no right to administrative appeal.  Also, lawyers have no right to be present during a consular visa interview. 

Good news is that there are few things that can be done upon a visa rejection, such as requests for reconsideration or resubmission of applications, request for supervisorial review at the consular post, request for advisory opinions from the Visa Office, judicial review and other strategies.

Effective Strategies for Communicating with Consulates

  • Request for Reconsideration:

Many immigrant visa (green card) applicants are under the belief that they are not allowed to challenge a visa refusal by a consular officer. In fact, every applicant for an immigrant visa has a right to submit a Request for Reconsideration of an immigrant visa denial. The request is not an appeal but does give the applicant the right to submit new evidence or arguments to challenge a visa refusal and the consular officer is obligated to review such request.

In a request for reconsideration, the applicant or his lawyer points out the legal or factual mistake made by the consular officer. For instance, a consular officer may have decided that that a misrepresentation was "material" and as a result denied the visa and put permanent ban of entry into the U.S. on the applicant. The applicant can request reconsideration putting forth the argument that a discrepancy in his visa application was not material. 

  •   Review Procedure at a Consulate Post:

There is limited review of visa refusals in both immigrant and non-immigrant visa categories by the principal consular officer. The manner in which the principal officer conducts review of visa refusals varies from post to post.  Reviewing officers are instructed to pay special attention to visa refusals of inexperienced officers. 

A lawyer's intervention can lead to meaningful review by the chief consular officer.  If the lawyer is present at the post at the time of the refusal, he or she should request to speak to the officer in charge to go over facts and legal issues; if the lawyer was not present, he or she should send a written request for review to chief consulate officer (via e-mail or fax). 

  • Advisory Opinion from the Visa Office:

Challenging Refusal on a point of law-

If the lawyer believes that the visa officer made a mistake of law in denying the visa, the lawyer should consider seeking an advisory opinion from the State's Visa Office Advisory Opinions Division (AOD).  The AOD issues advisory opinions on a variety of legal questions and issues relating to immigrant and non-immigrant visas.  The AOD does not review assertions that the consular officer made a mistake of fact

  • National Visa Center Inquiry

The National Visa Center (NVC) answers telephone requests for general information about nonimmigrant and immigrant visas cases. If action (for example, administrative processing) appears to be taking too long, a telephone call to the NVC may lead to a follow up from NVC to the post inquiring about the status of the case. This is more of a method to expedite the visa procedure through the system rather than challenging a visa refusal.

Applying Again After Visa Refusal

More often than not, there is no specific ground for visa denial that one can pin point.   After refusals the consulate usually gives the applicant a form stating the reasons for refusal like 221g (administrative processing) or 214b. (Refusal).  A 214 b denial is generally because the applicant is not able to convince the consular officer that he or she has strong and long-term family, social, and economic ties outside the US to which he will return to after his temporary stay in the U.S.

Consular officers typically take into account following factors in determining whether the applicants have adequate ties to their home country:

  • Whether the applicant has traveled to the U.S. before and how long he/she stayed? If stay is longer than 6 months, was an extension obtained?
  • For how long has the applicant been back in his home country
  • If the applicant has any immediate dependents in his home country
  • Whether the applicant is professionally or gainfully employed in his home country and details regarding the nature of employment and compensation.
  • Whether the applicant has ant significant assets in his home country (example, home, investment property, stocks, etc.)

A consular officer will reconsider a case a case if the Applicant can show further convincing evidence of ties to his home country. A lot of times, people are not successfully able to show ties to their home country and, therefore, will not qualify for a nonimmigrant visa, regardless of how many times they reapply. This will only change when their personal, professional, and financial circumstanceschange.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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