Many immigrant visa applicants are under the mistaken impression that they are not allowed to challenge a negative visa decision by a consular officer. In fact, every applicant for an immigrant visa has a right to submit a Request for Reconsideration of an immigrant visa denial.
While technically this is not an appeal, a Request for Reconsideration does give the applicant the right to submit new evidence or arguments to challenge a visa refusal. A consular officer must review such a formal Request; this is an obligation, one that the consular officer cannot shirk. This obligation is set out in the Department of State’s own regulations, and an appeals court recently confirmed that this is the consular officer’s duty, punching a hole in the armor of the consular nonreviewability doctrine. However, there is a time limit on the submission of the RFR: it must be submitted within one year of the visa denial decision.
In such a Request, the applicant or his lawyer points out the legal or factual mistake made by the consular officer. For example, a consular officer may have decided that a conviction was for a crime of moral turpitude, or that a misrepresentation was “material” and as a result, denied the visa and permanently barred the applicant from the United States. The refused applicant can request reconsideration, making arguments that the conviction was not for a crime of moral turpitude or that an inaccuracy in his application was not material. A refused applicant can overcome an accusation that his marriage is a sham by presenting additional evidence that his marriage is a legitimate one.
If you believe that a consular officer’s immigrant visa decision was erroneous, please feel free to contact us.