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Consular Denials [221(g)]

Consular Denials

Consular Denials [221(g)]

The first thing to know when you are going to interview at a U.S. consulate is that consular officers (COs) have exclusive and absolute authority to decide visa applications with no right for the lawyer to be present at the consulate to present legal arguments.  You can think of this as “consular absolutism.”

For close to 60 years, the consular visa system has been controlled by the Immigration and Nationality Act (INA).  The INA exempts consular visa decisions from the supervisory authority of the secretary of State, and this has been interpreted as precluding administrative review of consular visa decisions.  Therefore, under case law and interpretations of the INA, consular officers are regarded as having absolute, unreviewable authority to grant or deny visas.

The general rule is that a COs decision to deny a visa application is not subject to “administrative” or “judicial review.”  Administrative or judicial review of consular decisions is possible to a small extent.  Regulations provide that a COs decision may be reviewed at the consular post by the chief of the section or referred to the Department of State in Washington, D.C. for an “Advisory Opinion.”  The chief will either persuade the CO that the application was wrongly denied or may take over the case and approve the nonimmigrant visa application.

Where the chief of the section disagrees with the CO, the case will automatically be referred the Department of State for an advisory opinion.  An advisory opinion will only address issues of law, but the law is binding.  If a CO’s decision is based on an error of law, the decision can be overturned.  The “catch” is that the CO’s denials are usually framed as issues of fact since factual determinations cannot be overturned.

If a CO denies a visa application, the CO will give the applicant a timely written notice that gives the decision and lists the specific provision or provisions of law under which the applicant is “inadmissible.”

When a visa applicant is refused a visa, the CO must first inform the applicant orally of both the section of law under which the visa was refused and the factual basis for the refusal except when the information is “classified”, “sensitive but unclassified”, or was obtained from another U.S. government agency.

In any nonimmigrant case that is denied, the CO must also provide the applicant with a c completed “Visa Refusal Letter” that lists the ground(s) of refusal.  The CO will the update the nonimmigrant visa computer system by listing the reason for denial in the “Remarks” section and will annotate the application with the date of refusal, initials of the refusing officer, and the section of law under which the application was denied. This denial is now part of the applicant’s permanent record.

Will Hiring An Attorney to Prepare My Visa Application Hurt My Case?

Nonimmigrant and all immigrant cases, as well as some unusual B-2 cases, benefit from lawyer involvement. Do not think that an attorney’s involvement would hurt your case.

The State Department has formally recognized the importance and value of lawyer preparation of consular visa cases. In an AILA/Visa Office Liaison Committee meeting, the Visa Office made the following statement:

“There is an appropriate role for attorneys to play in the visa process; the involvement of an attorney in a visa case does not signify anything amiss. The majority of attorneys is aware of an adheres to the rules of the game. In the sometimes complex world of visas, a good attorney can prepare a case properly, weed out “bad” cases, and alert applicants to the risks of falsifying information presented to the consular officer. The attorney can help the consular officer by organizing a case in a logical manner; by clarifying issues of concern; by avoiding duplication of effort (reducing interview time); and by providing the applicant with the necessary understanding of the intricacies of the visa process thereby easing the pressure on consular sections to provide information to the applicant.”

Is the Consulate Obligated to Respond to My Lawyer?

The State Department’s Foreign Affairs Manual (FAM) requires COs to recognize a valid lawyer-client relationship and correspond directly with lawyers. Even when an applicant lives in the consular district and the lawyer is in the United States, consular are required to correspond directly with the lawyer.

Can My Attorney Represent Me at My Consular Interview?

The FAM provides that each consular post has the discretion whether to allow attorneys and other representatives to have physical access to the consulates or attend visa interviews.

Can My Attorney Make Inquires at the Consulate on My Behalf?

Even at posts that do not permit lawyer presence at visa interviews, some COs will meet with a lawyer to discuss the case generally and listen to legal arguments. A competent attorney will present relevant documents pertaining to the case and a summary of facts, as well as any legal arguments. These documents will provide more clarity regarding eligibility and increase the applicant’s chances of obtaining visa approval. It is possible in certain circumstances for the attorney to fly to the consulate to have an in-person meeting with the consular officer (in the consul’s office) without the applicants being present.

So what does this mean for visa applicants? It means that the very step, the preparation of consular visa applications, should be done properly from the beginning.

I Just Completed My Interview and Received a “221g”. What Does this Mean?

A §221(g) is a refusal on the basis that the applicant did not submit all of the required documents. In nonimmigrant visa cases, the State Department regulations and the FAM require the CO to issue or refuse the visa at the time the application is presented. Even when there is lack of complete documentation, the CO must refuse the application under INA §221(g) (lack of documents).

It is important to remember that the applicant has one (1) year to response to a §221(g) refusal. If one or more years have passed since the latest refusal, the applicant must submit a new visa application and pay the visa fee again.

I Just Completed My Interview and Received a “214(b)”. What Does this Mean?

Section 214(b) states that with the exception of H-1B, L, and V applicants, every nonimmigrant visa applicant “shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa…that he is entitled to a nonimmigrant status under section 101(a)(15).”

Section 101(a)(15)(B) states that a nonimmigrant visa applicant is an alien “having a residence in a foreign country which he or she has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.”
In addition to the residency requirement, INA§101(a)(15)(F)(i) requires student visa applicants to have the qualifications necessary to pursue a full course of study and the intent to “enter the United States temporarily and solely for the purpose of pursing such a course of study…”

As with any visa applicant, it is always up to the applicant to prove his or her case. The biggest mistake a visa applicant can make is to attend an interview and expect the consular officer to ask for information or documents that prove the applicant is eligible. To the contrary, the applicant must come to the interview fully prepared on how to answer the consular officer’s questions and with any documentation that the consular officer might want to verify any of the information in the visa application.

For a visitor (tourist) visa, it is up to the applicant to prove the residence, legitimate purpose and temporariness requirements and “demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations that will individuate a strong inducement to return to the country of origin.” The temporariness requirement can be proven if the “period of time projected for the visit is consistent with the stated purpose of the trip.” With our clients, we determine the length our client would like to remain in the U.S., assess the appropriate activities that will be accomplished during this time, and ensure each day is accounted for.

In addition, the applicant must have the funds to support him/herself during the entire trip and cannot engage in unauthorized employment. Lastly, the FAM discusses various legitimate purposes of travel in the B visa category.

To qualify for a student visa, the student applicant must have a residence abroad; no immediate intention to abandon that residence; and an intent to depart the U.S. upon completion of the course of study. A prerequisite for the F-1 visa is also the applicant’s ability to pay for the program and comply with other requirements (receive I-20 from an SEVP-certified school, pay SEVIS fee, have English proficiency if applicable. The FAM also provides that the proposed education does not need to be connected to a future career, be unavailable in a foreign country or be at a four-year university.

The Consular Officer is aware that because of the student’s age, understandably, the student’s ties are weak since the student is often single, unemployed, without property and a bank balance and is at the stage of deciding future plans. So the residence abroad requirement is not exclusively linked to “ties abroad” but more so on “immediate intent to depart the U.S.” at the time of completing the academic program.

Although a §214(b) denial letter may be vague, the Department of State has clearly explained it as:

“Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a job, a house, a family, a bank account. “Ties” are the various aspects of your life that bind you to your country of residence: your possessions, employment, social and family relationships…During the visa interview they [consular officers] look at each application individually and consider professional, social, cultural and other factors. In cases of younger applicants who may not have had an opportunity to form many ties, consular officers may look at the applicant’s specific intentions, family situations, and long-range plans and prospects within his or her country of residence. Each case is examined individually and is accorded every consideration under the law.”

There are several general factors unrelated to an individual applicant that may play a role in a consular officer’s §214(b) decision:

  • Overall economic and political situation of the home country is the single most determinative factor
  • The reviewing officer’s experiences, background, training and beliefs
  • The post’s managing officer is also vital (policies and issuance rate can change overnight)
  • The impact of the political world on the consular officer

I Have A Scheduled Interview Coming Up. How Can I Prepare?

The interview is the most important part of the process because it is the applicant’s only chance to overcome an officer’s negative view.  TO help the officer make a §214(b) decision, the officer will profile the applicant.

This means the officer will look at:

<li>Strong and temporary purpose to visit U.S. (e.g. medical treatment, graduation, conference, competition, funeral, etc.)</li>
<li>Applicant’s age</li>
<li>Length of time in a job</li>
<li>Previous time spent in the U.S.</li>
<li>A filed immigration petition</li>
<li>Other travels</li>
<li>Having relatives in the U.S.</li>
<li>Being from a certain city </li>
<li>Having a particular occupation</li>

Why Might My Case Be Denied for a §214(b) Violation?

The most common §214(b) denial might arise from:

<li>Limited ties to home country: usually young applicants who are unemployed or have low-paying jobs or a new job, have no children, are not married, live in rural areas and won no property or assets</li>

<li>Problems during interview: An interview will last between two (2) and five (5) minutes.  The important of an interview cannot be underestimated.  The interview is the key element in making or not making a §214(b) determination.  Many denied applicants claim “the officer didn’t even look at my paperwork.”  The fact is that consular officers place little weight on documents.  For this reason, we help provide guidance to our clients on how to conducts him/herself, how to answer questions, how to dress, how to react, facial expressions, eye contact, how to refrain from hesitating while answering questions, how to respond to discrepancies when answering questions, how to control nervousness.  All of this goes into the officer’s mind when examining the applicant’s intentions, credibility, and eligibility for a visa. </li>

<li>Inaccurate consular understanding of facts or law: Consular mistakes in the review of visa applications are numerous.  Officers have limited time and resources, sometimes have limited foreign language skills and sometimes are not thoroughly trained.  They make innocent but critical errors.</li>

<li>Fit overstay profile – if the applicant matches a profile that validation studies have shown tent to overstay visas, the applicant is likely to be denied.</li>

<li>Numerous, long-term visits to the U.S./extension of status</li>

<li>A prolonged visit in the initial application</li>

<li>Change of status in the U.S.: A person returning to his home country to receive a visa after changing status in the U.S. may be denied a visa (e.g. applicant arrives as a tourist then files to change status to another nonimmigrant visa)</li>

<li>Student problems: Denials based on “non-brand name” university, lack of economic ties, enrollment in non-career enhancement courses, enrollment in a program with little practicality in the home country, etc.</li>

<li>Inadequate finances to support the purpose of the trip: if the purpose of the trip is medical, then the applicant should have the financial evidence to pay the bills (either personally or through a sponsor).</li>

<li>Derivatives: It is not uncommon for spouses to be denied (e.g. change of status by the principal or if the derivative applies after the principal has received the visa and spent significant time in the U.S.)</li>

<li>Intent to visit the U.S. to give birth in B status: The FAM does not specifically prohibit or permit having a child in the U.S. on a B visa but the actual practice of consular officers may differ.</li>

<li>Gave birth in the U.S. on a B visa: If the applicant was pregnant at the time of initial application and was not honest in disclosing the reason for going to the U.S., this may be held against the applicant on the next application.</li>

<li>Suspicious-looking invitations: Inviting parties with little or no connection to the applicant may arouse suspicion about legitimacy of the trip</li>

<li>Get-acquainted trip with significant other: Invitations from U.S. nationals to their partners often leads to denials. </li>

<li>Failure to comply with a posts’ specific application requirements</li>

<li>Miscellaneous: Those who own real estate in the U.S., foreign nationals previously-employed in the U.S., elderly applicants (who may be viewed as likely to become a public charge) individuals with an arrest record, and those with pending immigrant applications.

As you can see there is a whole host of reasons for denials.  We discuss with our clients their specific goal of visiting the U.S. as well as their ties and any prior denials, and then prepare them for the consular interview.  We also prepare the F or B visa application and compile the supporting documentation.  Our attorney memo addresses the purpose of the trip, the individual’s ties, any other relevant issues, and pertinent FAM provisions.

My Visa Application Was Denied. What Are My Options?

Apart from re-submitting a visa application or requesting review (in certain circumstances), obtaining an Advisory Opinion may be extremely helpful in obtaining a visa approval.  The Department of State’s Visa Office Advisory Opinion Division (AOD) issues advisory opinions on a variety of legal questions and issues pertaining to immigrant visa and nonimmigrant visa cases.  Members of Congress, lawyers, and individuals may make requests for opinions from AOD.

When a consular officer requests an advisory opinion, the Visa Office will not issue a copy of it to the lawyer or applicant, but it will send a letter to the lawyer or applicant explaining the content of the advisory opinion (unless the information is classified or contains other sensitive material).  There are special situations when the initial refusing consular officer is required to seek an advisory opinion; a lawyer can assist with finding out when this special circumstances applies.

The last option is to seek a review by the court.  In theory, non-U.S. citizens who are physically outside of the U.S., including visa applicants before a U.S. consulate, should be able to invoke federal judicial review.

Can I Request Supervisory Review of My Visa Denial?

The State Department’s regulations provide for limited review of visa refusals in both immigrant visa and nonimmigrant visa cases.  The regulations provide that all visa refusals must be reviewed by the “principal consular officer” who is usually the supervisor of the adjudicating officer who will then complete a Visa Refusal Worksheet.  In consulates where there is only one consular visa officer, refusals are usually reviewed by a consular supervisor who has an official consular commission and title.

The principal consular officer who reviews the visa refusal has three options: 1) affirm the denial; 2) request an advisory opinion from the State Department; or 3) assume “responsibility for the case by reversing the refusal.”  If the reviewing officer does not agree with the refusal, he or she must discuss the case fully with the original adjudicating officer before reversing the refusal.  The reviewing officer cannot reverse an INA§214(b) refusal (failure to establish nonimmigrant intent) without re-interviewing the applicant.  So at the time of the visa denial, the case has technically already been “reviewed” by a supervisor.

However, attorney involvement can be crucial both in request review from the principal consular officer as well as from the chief consular officer who will conduct a final review.

I Have Not Received a Decision on My Visa Application. What Can I do?

It is not uncommon for calls and letters to the consulate to go unanswered.  For this reason, it is important to hire an attorney who is not only persistent but also diplomatic.  Knowing whom to call and who has authority over certain matters may help an applicant’s case.

Another option may be to contact the Visa Services, Public Inquiries division which answers requests for general information about visas and consulates or for a status report on the processing of a particular case if processing has been delayed.  If action appears to be taking too long, sometimes a phone call or email to Visa Services, Public Inquiries may trigger an email from the Visa Office to the post inquiring about the status of the case.

There is a difference between an officer refusing to issue the visa and refusing to adjudicate the application.  It is actually better for an officer to refuse t

What is a “Quasi-Refusal”?

Quasi-refusals are cases where no formal application has been filed, but the consular has received statements or other evidence that the applicant is ineligible for a visa.  The State Department’s regulations would require the applicant to submit an application so the CO can issue a formal refusal (and explain the provision of law or regulations upon which the visa was refused).

I Applied for a Visa and Was Refused. When Can I Apply Again?

In all immigrant visa cases, the applicant has one year after refusal to request reconsideration.  After one year, the applicant will need to file a new application and pay a new application fee.  In nonimmigrant visa cases (except for §221g refusals), the applicant can obtain a reconsideration by the original officer is to resubmit a new application.

I Wrote a Letter to a Congressperson and I Have Not Heard Anything.

In our firm’s opinion, a congressperson’s letter to a consular or the State Department to make an inquire into a case usually does little to help in reversing a denial.  A congressional aide may write an “inquiry letter” asking about the status of the case, but these letters are generally not welcomed by the State Department of consular officers.  They almost always result in an explanation of the reasons for the refusal rather than any positive action.

However, a well prepared and supporting congressional letter that urges reconsideration of a visa refusal and describes the credibility of the applicant or employer may help in swaying the Consular Officer’s decision.  These efforts should be used sparingly, and only when the congressperson can provide a non-general inquiry letter.

Can I Get a Copy of My Visa Application?

Under INA§222(f), the State Department’s records are confidential even if a Freedom of Information Act (FOIA) is filed. However, the Foreign Affairs Manual does allow copies of the following documents to be released to the applicant: 1) correspondence previously sent to or given to the applicant by the post; 2) civil documents presented by the applicant; and 3) visa applications and any other documents, including sworn statements, submitted by the applicant to the consular officer.

For this reason, applicants may want to: 1) keep a copy of the submitted application and all supporting documents; and 2) immediately after the interview, write down to best of his/her ability, all of the consular officer’s questions and applicant’s answers.  This will help the attorney know all the “cards” held by the reviewing officer in the event of a denial.

How We Can Help.

  • Request a re-interview to present additional documents to the chief consular officer
  • Submit necessary documents where 221(g) has been issued
  • Obtain clarification from a consulate whether the visa was refused, whether the file needed additional information/documentation, whether the officer declined to adjudicate the application, or was making a quasi-refusal
  • Contact Consular Officer to discuss the grounds for refusal and discuss what can be done to overcome the refusal
  • Submit a request to reconsider refused visa application or resubmit application to the original refusing officer
  • Prepare a request for review to the chief consular officer (citing regulations and the FAM provisions regarding review)
  • Request an Advisory Opinion for cases denied whether the denial was based on a mistake of law

Contact Us

Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm.  Please call our office at 301.529.1912 or complete the form below. Please be sure to provide a timeline of events along with details of your entire immigration history.