If you applied for an immigrant visa and, despite getting the initial go-ahead when U.S. Citizenship and Immigration Services (USCIS) approved the visa petition by your employer or family sponsor, the U.S. consulate denied your visa, you're no doubt wondering, "Why?"
In this article, we will outline the most likely reasons for this decision, and provide information about what you can do to obtain the immigrant visa after all and come to the United States as a lawful permanent resident.
It might seem strange that USCIS can approve an immigrant visa petition, only to have the consular officer deny the actual immigrant visa. But these two entities perform different functions in the immigration process. USCIS is the government agency that evaluates immigrant petitions and decides whether the beneficiary meets the basic qualifications for the immigrant category sought, for instance, that the alien is of extraordinary ability, a qualified religious worker, an immediate relative of a U.S. citizen, or something else. It's a green light, to be sure; but it's focused mostly on the relationship between the sponsor and immigrant, not on the immigrant's suitability for U.S. entry.
Once USCIS completes this process, the U.S. consulates are tasked with ensuring that all intending immigrants to the U.S. are admissible; that is, that they are not subject to any grounds of inadmissibility such as criminal convictions, terrorist activities, previous immigration fraud, and so on.
There are two main reasons why the consular officer may deny an immigrant visa:
A consular officer who denies a visa should provide you with an explanation for the denial. (We emphasize the "should" because it's possible that the officer will not explain the denial. In that case, you should contact the consulate and ask for an explanation.)
The grounds of inadmissibility outlined in § 212 of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1182 are the most common reasons why officers deny immigrant visas. These inadmissibility grounds include (but are not limited to):
If the officer found you inadmissible pursuant to I.N.A. Section 212, you might have the option to file a waiver (request for legal forgiveness). If the waiver is approved, you will be permitted to reapply for your immigrant visa and the officer cannot deny your visa based upon the now-waived ground of inadmissibility.
Please note that no waiver is available for some inadmissibility grounds, such as terrorist activity or espionage.
Additionally, the consular officer can deny an immigrant visa after finding that USCIS erred in approving the underlying immigrant visa petition. Section 221(g) of the I.N.A. empowers consular officers to make this decision, and also allows them to ask USCIS to revoke its approval of a petition.
Since USCIS is responsible for evaluating immigrant petitions, the Department of State (DOS) instructs its consular officers to not readjudicate petitions, but rather deny a visa only based upon Section 221(g) if the officer knows, or has reason to believe, that the petition approval was based upon fraud or misrepresentation. This burden is supposed to be high, to prevent consular officers from usurping USCIS's authority and second-guessing its approvals.
If your visa was denied pursuant to Section 221(g), your best option is probably to refile the immigrant petition. The revocation process is lengthy and can take years to complete. To revoke a petition, the officer forwards it, along with the revocation request, to the DOS's Kentucky Consular Center, which forwards the petition to USCIS.
Next, USCIS readjudicates the petition and either affirms its original approval and returns it to DOS, or issues a Notice of Intent to Revoke (NOIR) to the petitioner. The NOIR asks for additional information. The petitioner has 30 days in which to send the requested documentation. Then USCIS begins its review process again, and if USCIS approves the petition a second time, the consular processing begins anew.
The process for applying for an inadmissibility waiver (most likely on Form I-601) is highly technical, and requires substantial supporting evidence. The majority of waivers may be used in conjunction with only one or two specific grounds of inadmissibility. If you are subject to multiple grounds of inadmissibility, you will likely need to file numerous waivers. Additionally, the logistics of waivers, that is, where to file, when to file, and their cost, vary greatly.
To avoid potential delays or other negative immigration implications, contact an immigration attorney specializing in these matters.