Visa Denials

visadenied7.  Visa DeniedOver the past few years, travel to the United States has become increasingly difficult, and this trend is only increasing.  As many visitors have found out, obtaining entry into the United States, on either a temporary or permanent basis, can be a difficult journey of setbacks and denials.  The single biggest obstacle is the consular interview. 

 

During your visa interview, the consular officer at the U.S. Embassy will determine if you are qualified for the type of visa you are applying.  These people have the sole authority to approve or deny visa applications.  Effectively, the one interview that could forever change your life depends solely on one U.S. official, who may be in a bad mood. 

 

The consul is always right because the U.S. law sets out many standards under which a visa application may be denied.  The usual reasons for inadmissibility include medical or health-related grounds, previous immigration violations, lying/fraud in filling out applications and criminal convictions.  Most of the time, the consular officers are correct in their assessments.

 

If a consular officer finds that you are ineligible to receive a visa, your visa application will be denied (refused) and you will be provided a standard reason for the denial.  There are many reasons an applicant could be found ineligible for a visa.  For instance, if you visited U.S. in the past and overstayed your visa (or extended it), it is an indication that you not intend to comply with the visa requirements.  Some reasons for denial can be overcome, while others are permanent.

 

Below are some examples of visa ineligibilities:

 

  • The applicant did not fully complete the visa application and/or provide all required supporting documentation (INA section 221(g))
  • The applicant did not establish eligibility for the visa category being applied for or overcome the presumption of being an intending immigrant (INA section 214(b))
  • The applicant was convicted of a crime involving moral turpitude (INA section 212(a)(2)(A)(i)(I))
  • The applicant has two or more criminal convictions for which the total sentence of confinement was 5 years or more (INA section 212(A)(2)(B))
  • The applicant did not demonstrate proof of adequate financial support in the United States and is denied under public charge (INA section 212(a)(4))
  • The applicant misrepresented a material fact or committed fraud to attempt to receive a visa (INA section 212(a)(6)(C)(i))
  • The applicant previously remained longer than authorized in the United State (INA section 212(a)(9)(B)(i))

 

After being found ineligible for a visa, you may reapply in the future by submitting a new visa application and paying the visa application fee again. 

 

Below we briefly discuss some of the more common reasons for visa denials:

 

INA section 221(g) (Incomplete Application or Supporting Documentation).  A visa denial under this section is a “quasi-refusal” because the final determination is deferred by the consular officer.  It means that you did not submit all the required information, and therefore you are not eligible for this visa now, but your case is pending further action

 

When the reason for the deferral has been addressed, the visa application for will be retrieved from the consular files, with the new information added, and the visa either will be issued or refused.  You have one year from the date you were refused to submit additional information, otherwise you must reapply for the visa and pay another application fee.

 

INA section 214(b) (Visa Qualifications and Immigrant Intent).  This section applies only to nonimmigrant visa categories, and it states:

 

“Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status.”

 

In other words, everyone applying for a non-immigration visa is regarded as someone who wants to stay in the U.S. permanently, until he or she can prove otherwise.  This applies to applicants for B1/B2 (visitor for business or pleasure), F-1 (student), and J-1 (exchange visitor) visas.

 

To overcome the presumption of immigrant intent, you must demonstrate “strong ties” that will force you to leave the U.S. at the end of your temporary stay, otherwise your application will be rejected.  “Strong ties” are a combination of factors that bind you to Ukraine, including your job, real estate, bank accounts, business, investments, relationships with family and friends, etc.  Family ties and social ties are not counted the same way that employment or financial ties are (e.g., going to U.S. and leaving wife and kids at home is not as important as real estate, business and employment).

 

Each person’s situation is different.  For example, in cases of younger applicants who did not have an opportunity to form many ties (and single young ladies), the consular officer will look at the specific intentions, family situations and long-range goals.  While conducting your interview, the consular officer will also consider your other circumstances, including travel plans (written itinerary) in the U.S., financial resources (bank statements, affidavits from relatives to support you financially), and any family ties in Ukraine that will ensure your departure after a temporary visit.

 

The bad news with refusal under section 214(b) is that consular officers have absolute authority to make decisions as they see fit, while applicants have no right to administrative appeal and lawyers have no right to be present at the consular interview.  Worst of all, there is no appeal process, sono lawyer and no court can appeal their decision.  Once your case is closed, the consular section will not take any further action. 

 

The good news, however, is that this visa denial is not permanent.  The fact that you were unable to establish nonimmigrant status at one time would not preclude you from qualifying for a visa by showing a change in circumstances.  In our experience, the consul will often reconsider a visa denial if you can offer convincing evidence of how your personal, professional and financial circumstances have changed.  In any case, the only option in case of denial under 412(b) is to re-apply with any additional information or evidence of significant changes in your circumstances since your last application.

 

In conclusion, U.S. consular officers have the unrestrained decision-making power on all visa cases under section 214(b).  While the U.S. State Department has the authority to review the consular decisions, such authority is limited to the interpretation of law, not the determination of facts.  The determination of whether you possess the required ties to Ukraine is a factual one, and therefore falls exclusively within the authority of consular officer.  The only way to change your prior visa denial is through the presentation of new convincing evidence of strong ties.  In other words, a difficult road lies ahead.

 

INA section 212(a)(4) (Public Charge).  A visa refusal under this section means that the consular officer determined that you will become dependent on the U.S. government for your existence and financial support.  This refusal can be overcome in certain circumstances.  For instance, in immigrant visa cases, the U.S. sponsors who filed petitions may submit an Affidavit of Support.  Additionally, you should demonstrate to the consular officer that you will have financial support in the U.S. (e.g., your own funds, a job offer, etc.)  The consular officer will review the additional evidence to determine your eligibility to enter U.S.

 

INA section 212(a)(6)(c)(i) (Fraud and Misrepresentation).  Refusal under this section means you tried to obtain a visa by willfully misrepresenting a material fact or committing fraud.  The penalty for lying is harsh: this is permanent ineligibility, so every time you apply for a visa, you will be found ineligible for this reason.  The consular officer will advise you if you can apply for a waiver of this ineligibility.

 

INA section 212(a)(9)(B)(i) (Unlawful Presence in the U.S.).  You were refused a visa because you stayed in the U.S. after the expiration date of your authorized stay or you entered and were present in the U.S. without authorization.  In this case, you are ineligible for a visa for the following length of time: (a) three (3) years if unlawfully present in the U.S. for 180 days or longer, but less than one year; or (b) ten (10) years if unlawfully present in the U.S. for one year or longer.

 

The simple truth is that U.S. visa denials are an unfortunate everyday reality for many applicants who are unprepared for the screening interview.  However, even after you have been denied a visa, there are certain avenues available to gain entrance into the United States.  First, you have to learn the reason why your visa has been denied.  Consular officers’ denials and their reasons vary from case to case, and at the end of your interview at the Embassy you will receive a form letter that specifies the reason for the denial.  That reason could range from a simple case of missing documents or forms to far more serious grounds for inadmissibility, such as criminal convictions, overstaying a previous visa, or downright lying and document forgery. 

 

In many situations, visa refusals may be overcome by furnishing additional information or documentation that establishes your eligibility, or by taking other actions (procuring letters of support from Congressmen, Senators, providing Affidavits of Support and other financial guarantees, etc.)  Please contact us to learn about what can be done in your personal situation.  

 

Appeal Process 

 

uk-visa-refused-appeal-rights-grantedAppeal ProcessAn appeal is a process for requesting a formal change to an official decision.  For non-immigrant visa denials under 214(b), there is no appeal process.  Instead, the U.S. regulations provide that all denials should be reviewed by a supervisor at the consular post.  If you wish to submit additional evidence, such review must take place within 120 days.  The supervisor, 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 and re-adjudicate the case.  In this context, the lawyer’s job is to act quickly and professionally in an attempt to persuade the supervisor of the wisdom of re-interviewing the applicant or re-adjudicating the case.

 

If the visa officer or chief consular officer made a mistake of law in refusing an application, the lawyer should seek an advisory opinion from the Advisory Opinions Division (AOD) of the State Department’s Visa Office.  All advisory opinion requests are routed through the Office of Public and Diplomatic Liaisons, Public Inquiries Division, which reviews all requests to determine whether they involve legal questions and, if so, they will obtain the record from the consulate and forward it along with the inquiry to AOD.  The response is usually given within 15 days.  Such advisory opinions are binding on consular officers.

 

While no formal appeal process exists for 214(b) denials, if your application for U.S. immigration visa, Green Card or other issues has been denied or revoked by the U.S. Citizenship and Immigration Services (USCIS), in most cases that decision in may be appealed to a higher authority for review.  In immigration proceedings, the appellate review authority is divided between two separate government organizations:

 

  • The Administrative Appeals Office (AA) within USCIS; and
  • The Board of Immigration Appeals (BIA), under the jurisdiction of the Executive Office for Immigration Review in the U.S. Department of Justice

 

If your application was denied by USCIS, you have to review their written decision (form I-292) to learn the reasons for the denial, the proper appellate jurisdiction, the applicable deadlines and the correct USCIS form to file your appeal.  You must file the notice of appeal on USCIS form I-290B (Notice of Appeal to the Administrative Appeal Office) with the same office that made the original decision, with an explanation to support your appeal.  As a rule, an appeal must be filed within 30 days of the date of the decision.

 

In conclusion, if your U.S. visa is denied, you may be confused and frustrated.  But there are strategies available to overcome the denial.  Our immigration law specialists, based in Kiev and Miami, have the necessary expertise in consular processing, and we are able to assist you in pursuing reconsideration or resubmission of an application, supervisorial review at the consular post, an advisory opinion, judicial review, a waiver or other strategies.  If you need a lawyer for your visa denial immigration case in Kiev, Ukraine, please contact us anytime.