What If Your Spouse's Immigrant Visa (Green Card) Is Denied?

If you are married to a non-citizen of the United States, and your foreign-born husband or wife was refused lawful permanent residence (an immigrant visa or green card) after applying based on that marriage, you are probably shocked and upset. The sad truth of the matter is, however, that marriage to a U.S. citizen or lawful permanent resident gives an immigrant the right to apply for lawful permanent residence—but offers no guarantee that it will be granted.

What to do next will depend on the reason for the denial of the visa or green card and which U.S. government office was handling your application.

Understanding the Reason for the Visa or Green Card Denial

You probably have some idea of why your immigration application was denied. It's uncommon for U.S. immigration authorities to deny a case outright.

Usually, they'll first give or send a request for evidence telling you something like, "It appears that the applicant is inadmissible for health reasons—please go to this doctor for a followup exam," or "We aren't convinced that your marriage is bona fide (not a sham)—please provide us with additional documentation indicating that you are in a real, shared marital relationship."

If you failed to do what was asked, or the followup evidence you supplied either wasn't enough or actually pointed to a reason for denial, then of course the case will have been denied.

Or maybe you've even come to the conclusion that your spouse is ineligible for the green card, for example because their divorce from a previous spouse isn't final, or they're inadmissible to the United States. See Factors That May Prevent You From Getting a Green Card.

But the possibility also exists that the immigration authorities made a mistake. U.S. immigration law is extremely complicated, and any lawyer can tell you stories about cases that should have been granted and were not—sometimes for inexplicable reasons, or where it appeared that the decision maker just overlooked some of the evidence.

Also, laws change. So, for example, you could have been denied because you are in a same-sex marriage before the 2013 Supreme Court decision overturning the Defense of Marriage Act. But same-sex marriages now qualify noncitizens for immigration benefits (if they are legally recognized in the state or country where they occurred).

In cases where you believe a mistake was made, you'll probably want to take follow-up measures, as described below. And if you're not sure whether your spouse's application falls into this category, consult a lawyer for a full personal evaluation.

Immigrant Visa Denial at the U.S. Consulate

If your spouse applied for an immigrant visa (the document used to enter the U.S. and claim lawful permanent residence) at a U.S. consulate or embassy in their home country, and the case was denied, then no direct appeal is available. However, in some cases a lawyer might be able to request an advisory opinion on the case from the State Department's Visa Office in Washington DC, and then use that to request that the consulate grant the immigrant visa after all.

In many other cases, however, the best bet course of action is to figure out what went wrong the first time and reapply, making sure to correct the earlier problems.

Denial of Adjustment of Status in the U.S.

If your spouse applied for a green card at an office of U.S. Citizenship and Immigration Services (USCIS) within the United States, then no direct appeal is available.

However, your attorney might be able to request that the case be reopened, especially if you can supply new information that is likely to change the earlier decision. Here again, reapplying might also be an option, once you've figured out what went wrong the first time and how to correct it.

The situation will be different, however, if your spouse is in the United States without a valid visa; that is, illegally. In that case, after the denial, your spouse might be placed into removal (deportation) proceedings. There, you will need to present the entire application to an immigration judge, as well as testify and (if you like) call witnesses. Hopefully you will persuade the judge to grant the green card after all.

For more on what happens in immigration court, see Overview of The Removal (Deportation) Hearings Process.

Get Advice From an Experienced Immigration Lawyer

An experienced immigration lawyer can assist you with filling out the requisite paperwork for your spouse and advocate on his or her behalf. If applying for adjustment of status, the attorney can also accompany you and your spouse to the green card interview in the U.S. (the required last step in the process if you're adjusting status rather than going through a U.S. consulate) and help clear up misunderstandings and make sure the USCIS officer isn't overlooking important information in your application.