If you applied for an immigrant visa and, despite getting the initial go-ahead when USCIS approved your visa petition, the U.S. consulate denied your visa, you're no doubt wondering, "Why?" In this article, we will outline the most likely reasons why the consular officer denied your visa and provide information about what you can do to obtain the immigrant visa after all and come to the United States to become a lawful permanent resident.
It may seem strange that USCIS can approve an immigrant visa petition, only to have the consular officer deny the immigrant visa. This apparently incongruous result is possible because these two entities perform different functions in the immigration process. USCIS is the government agency that evaluates immigrant petitions and decides whether the beneficiary qualifies for the immigrant category sought, i.e., that the alien is of extraordinary ability, a qualified religious worker, an immediate relative of a U.S. citizen, and so on.
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 the like.
There are two main reasons why the consular officer may deny an immigrant visa:
(1) The officer finds the intending immigrant inadmissible; or
(2) The officer finds that U.S. Citizenship and Immigration Services (USCIS) made an error in approving the underlying immigrant petition, which contained a misrepresentation or instance of fraud.
When the consular officer denies your visa, he or she should provide you with an explanation for the denial (we emphasize the “should” because it is 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 Section 212 of the Immigration and Nationality Act (I.N.A.) 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 INA 212, you may have the option to file a waiver (request for legal forgiveness). If the waiver is approved, you are 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 your immigrant visa after finding that USCIS erred in approving your underlying immigrant petition. Section 221(g) of the I.N.A. empowers consular officers to make this decision, and also allows officers to request that USCIS revoke its approval of your petition.
Since USCIS is responsible for evaluating immigrant petitions, the Department of State (DOS) instructs its consular officers to not readjudicate petitions, but rather only deny a visa based upon 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 very high, in attempts to prevent consular officers from usurping USCIS’s authority and second-guessing its approvals.
If your visa was denied pursuant to 221(g), it is likely that your best option is to re-file the immigrant petition. The revocation process is extremely lengthy and can often 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 back to DOS, or issues a Notice of Intent to Revoke (NOIR) to the petitioner. The NOIR asks for additional information. The petitioner has thirty days 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 is high technical – the majority of waivers may only be used in conjunction with 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, i.e. 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.