201603291210387231By Attorneys Gregory J. Boult & Nancy E. Miller

Securing an immigrant visa to the United States can be a long and stressful process.  After waiting months or even years, an applicant concludes the process with a brief and concise interview with a consular officer.  In the best case scenario, the immigrant visa is approved at the time of the interview.  However, not all immigrant visa interviews proceed without issue; and for some, the interview can result in the denial of their application.  A denial is followed by confusion as the applicant and family members struggle to understand why the visa was denied and what action, if any, can be taken to remedy the situation.

An applicant who is denied an immigrant visa must be provided with written notice which specifically identifies the legal grounds for the refusal.  Generally, such written notices only identify the section of the law upon which the denial is based.  As a result, many applicants are left confused as to why they were denied.  In addition, depending upon the specific law cited for the denial, some applicants are informed that they may apply for a waiver which, if approved, would render them eligible for a visa.  Others are simply advised that no waiver is available and that the refusal is the final decision.  Obviously, either of these outcomes can prove devastating.  And the first step, which should be conducted by an experienced and knowledgeable immigration attorney, is a determination of whether the denial of the immigrant visa application was legally correct.

The immigration laws of the United States are complex.  It cannot be emphasized too strongly that the denial of any immigrant visa application should be thoroughly reviewed to determine whether the relevant law was correctly interpreted and applied to the facts of the case.  If the review establishes that an error was made by the denying consular officer, a formal request for reconsideration of the denial can be made.  Such a request must be in writing and submitted within one year of the denial, and must be supported by legal argument and supporting evidence which establishes that the denial was erroneous.  If a request for reconsideration is unsuccessful, an applicant may then seek an advisory opinion with the Department of State.  An advisory opinion is a formal position statement from the Office of Visa Services in Washington, D.C., which will issue a written position regarding any legal issue disputed from the denial of a visa.  If such a formal written position is favorable to the applicant, the advisory opinion can be utilized to seek the issuance of a new decision on the denied application.

While the first step is to always review, and challenge as appropriate, the denial of an immigrant visa application, there are instances when the refusal to issue an immigrant visa is legally correct.  Under such circumstances, the issue then turns to whether the applicant is eligible for a waiver.  While consular officers are afforded broad discretion to approve or deny a visa, discretion rarely becomes a factor in denying an immigrant visa.  Instead, the denial of an immigrant visa is usually based upon a ground of inadmissibility – a set of laws which preclude certain individuals from immigrating to the United States.  Common grounds of inadmissibility include convictions for certain crimes, fraud in an attempt to obtain an immigration benefit, and physical presence in the United States without authorization for certain defined periods of time.  Some grounds of inadmissibility do not provide for a waiver.  Such grounds of inadmissibility highlight the importance of carefully reviewing, and challenging as appropriate, the denial of a visa application.  However, for those who are not successful in challenging a visa denial, but who are eligible to apply for a waiver, the process of applying for such a waiver should begin in earnest.

For those eligible applicants, a waiver of inadmissibility must be submitted within one year of the denial of the immigrant visa.  An application for a waiver of inadmissibility is filed not with the denying embassy or consulate, but rather with Citizenship and Immigration Services.  Such waivers are typically complicated given the required evidence to prove successful, and should be prepared by an experienced and knowledgeable immigration attorney.  If granted, the waiver approval will be forwarded to the embassy or consult which issued the initial denial, and the applicant will be able to proceed with his or her immigrant visa application.

The denial of an immigrant visa is a very serious matter, and one which typically requires the professional services of an experienced and knowledgeable immigration attorney to explore and pursue all available options.  While the denial of an immigrant visa can be devastating, it may not be the last word.

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