Three Things to Know About Visa Denials

One of the most stressful events for foreign nationals trying to get a visa to the United States is the final interview with the consular officer. Once a visa application is submitted to the consulate, the consular office must make a decision on the application. The officer needs to decide whether the visa should be granted or denied. A visa denial will have repercussions on the foreign national’s ability to obtain a visa in the future.

There are three things that should be known about a visa denial for nonimmigrant visas. First, a visa denial is basically non-reviewable. This is based on the doctrine of consular non-reviewability, which states that the United States government has broad powers to determine who enters its borders. This allows consular officers to deny admission to foreign nationals for any reason as long as it is not in bad faith.

This means that a consular officer does not have to give the foreign national any reasons why their case is denied. The consular officer can provide a broad and general decision without going into specifics. An example is when a K1 visa is denied because the officer believes that the relationship is not genuine. The officer does not have to provide evidence to support their decision. There is no appeal of the decision. There is no automatic right to provide additional rebuttal information.

The second thing is that a visa denial will create a permanent black mark on the foreign national’s record. The documents related to the visa denial is electronically scanned and retained in a shared central database. An unsupported decision of a visa denial can have drastic effects on the ability of the foreign nation to obtain a visa in the future. If there is a notation that the foreign nation’s K1 relationship is not genuine, this will create a presumption of fraud even when there is no evidence of fraud. It is part of the foreign national’s visa record which is shared throughout the U.S. consulates and embassy’s worldwide.

Third, the U.S. state department has authorized some consulates and embassies to require applicants to wait six months to two years before reapplying for a visa without new supporting evidence. This is to prevent frivolous visa applications. If the applicant has been denied within the past six months to two years (depending on the reason of the denial), the applicant must specifically identify new supporting evidence that addresses the previous denial or the application will be preemptively denied.

The Consular Officer can choose between two types of denials. A Category 1 refusal which involves a permanent ground of inadmissibility. An example of this is a permanent bar as a result of a previous overstay, communicable disease, criminal history, or legislation. A Category 2 refusal is a denial based on the officer’s examination of the submitted documents. The denial is based on the discretion of the officer.

A subset of a Category 2 refusal is a quasi-refusal based on INA Section 221(g). A quasi-refusal is a denial of the case but the consular officer may give the applicant an opportunity to submit additional documentation to overcome the denial. Either the officer wants more time to obtain an advisory opinion from the Visa office or wait for the applicant’s security checks to clear. While some applicant’s believe that this is not a denial, it is still considered a denial by the consulate and should be explained in any future visa application by the foreign national.

A visa denial can have long lasting effects on the applicant. It is important that the foreign national understands what is involved in the visa application process. Completing forms and submitting the bare requirements for a visa may not be sufficient. It is important to discuss the process with an experienced immigration specialist or attorney.

 

Category: US Immigration