For visa applicants, the cards seem to be stacked against you. Among the hurdles a visa applicant must face:
- The law places the burden on the visa applicant to prove eligibility for the visa and that he or she is not inadmissible to the United States.
- There are inadequate consular resources; at busy posts, consular officers can only allot a few minutes to a visa adjudication.
- There is no formal administrative appeals process of a visa denial (no Administrative Appeals Office, Board of Immigration Appeals, Board of Alien Labor Certification Appeals).
- With limited exception, there is no judicial review of visa decisions because of the doctrine of consular reviewability.
- There is limited public accountability: no Department of State (DOS) Visa Ombudsman, no formal Complaint Procedure, and no formal recusal process.
- Section 428 of the Homeland Security Act grants the Department of Homeland Security (DHS) a vital role in the visa process and the public has very limited contact with DHS decisionmakers.
- Form visa refusal sheets are just that – boilerplate forms with no factual substantiation applicable to your application.
- Section 222(f) of the Immigration and Nationality Act shields from disclosure visa-related information and materials (usually making Freedom of Information Act requests futile).
- The role of the Visa Office at the Department of State is primarily limited to legal issues; factual issues are within the exclusive domain of consular officers.
- There is limited consular training in US immigration law, one of the most complicated areas of law.
- In nonimmigrant visa cases, particularly in high fraud countries, consular officers are trained to ignore supporting documents.
- There is no available recording of visa interviews, which can lead to a “he said, she said” situation.
- Consular officers sometimes profile individuals.
- Consular officers err on the side of caution.
- Advisory Opinions of the Visa Office to consular officers on legal topics are not published, so there is no transparency or centralized database as to how a particular issue will be handled.
- Consular officers are located outside the US – unaccountable to and immune from the scrutiny of US public opinion, media, and Congress.
But there is hope….
In fact, visa applicants have a whole range of rights, some of which the Department of State and consular posts outside the United States do not want you to know about. For example, the American Immigration Lawyers Association (AILA) requested DOS on at least two occasions to revise its form visa refusal sheets to apprise denied immigrant visa applicants of the right to seek reconsideration of the denials (similar to an appeal). This right is embedded in the Department of State’s own regulations, yet DOS and consular posts do not deign to inform refused applicants of this basic right. (The author welcomes examples, if such exist, of another US government agency deliberately failing to provide appeal right notifications to applicants against whom adverse action has been taken, particularly those who have paid processing fees.)
This is just the beginning. A visa applicant has the right to:
- have “full consideration given to any evidence presented to overcome a presumption or finding of ineligibility.” The visa applicant is to be accorded “every reasonable opportunity to establish eligibility to receive a visa.”
- a “sound”, “non-arbitrary” and “as accurate as possible” visa decision by the consular officer.
- be informed of the legal and factual basis of an inadmissibility finding.
- not be discriminated against based on race, sex, nationality, place of birth, or place of residence. (For an example of consular nationality-based discrimination, see the author’s ILW article on the Tsar-Consul of Uzbekistan.)
- request the intercession of the Visa Office if a legal error was made in the disposition of an immigrant or nonimmigrant visa application. The consul must defer to the legal opinion of the Visa Office because “[r]ulings of the Department concerning an interpretation of law, as distinguished from an application of law to the facts, shall be binding upon consular officers.”
- Visa Office review of a consular refusal to recommend the granting of a nonimmigrant waiver application in certain situations (e.g., where urgent humanitarian, medical, national security or foreign relations issues are implicated).
- non-readjudication of a USCIS-approved petition. This means that after USCIS has approved an employment petition (except for E visas), the consular officer may not substitute his opinion for the decision of USCIS. A consular officer must defer to USCIS unless he finds fraud, a material misrepresentation, new information which might have affected the initial decision, or that the applicant is not admissible or eligible for the visa.
- have his/her petitioner respond to a consular recommendation for revocation when USCIS sends out a Notice of Intent to Revoke the petition approval.
- a decision on a visa application. A consular officer cannot withhold a decision or “sit on” an application interminably. A decision must be made within a “reasonable time.”
- receive certain visa-related documents upon request (documents submitted by applicants, such as visa application and sworn statement). US consular posts in India are particularly resistant in this regard, first coercing “Voluntary Statements” from applicants and then attempting to conceal the contents of those Statements from the applicants when they request copies.
- not to be profiled. The consular officer cannot refuse an applicant based on fitting a demographic profile, such as being “young” or “single.”
- to assistance of third parties, such as lawyers. The applicant’s US-based petitioner, relative, or friend may also contact a member of Congress for assistance in a visa case.
- consular compliance with the DOS Customer Service Statement (e.g., the applicant has the right to be treated with respect): https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/customer-service-statement.html
- to file a lawsuit in US Federal Court, for example, to challenge consular inaction on a visa application, a consular or DOS practice or policy, a consular failure to act on a request for reconsideration, or action by another government agency leading to a visa denial.
- not to be punished for perceived visa-related abuses by other persons (e.g., a change of status or visa overstay by a relative), i.e., “punishment” is not a legal basis for a denial.
- submit a new nonimmigrant visa application after a refusal, regardless of how little time has elapsed since the denial.
- be understood during the visa interview. This is common sense, but sometimes simple misunderstandings and consular lack of proficiency in the local language can lead to a visa denial.
This list is not exhaustive: a visa applicant has more rights. An article can be written on each of the above-mentioned rights, with some of the rights open to interpretation: What is a “reasonable opportunity to establish eligibility?” What does it mean to “profile” an applicant? What is a “reasonable time” to process a visa application?
But what should be clear from the above is that one cannot count on the Department of State or the local embassy or consulate to inform you of your visa rights. The power of the rights accorded to the visa applicant comes only with their knowledge and timely exercise. Don’t lose an opportunity to exercise your visa rights.
Contact Ken White if you have any questions.