Things you should know when you're denied an immigrant visa at US embassy
By Atty. Mike Templo | 09/27/2008 3:16 PM
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Moving permanently to the United States is a serious undertaking and must be planned out well. It is unwise to be complacent and sloppy after having waited years for the petition to come out.
When your priority date of the petition becomes current and your visa petition is approved, you will start receiving correspondence from the U.S. Embassy in Manila and will proceed with consular processing. You must be aware that even though the underlying petition is approved, there is still a possibility that the consular officer won’t issue you an immigrant visa. So preparation is key – both in documentary requirements to be submitted and how to go about the visa interview.
Before you proceed with consular processing, it is a wise move to speak with a reputable immigration attorney to review the documents you intend to submit and to prepare you for the visa interview by practicing how you answer possible visa questions.
In the event that your preparation turns out to be insufficient and a visa is not issued to you, do not think it is the end of the world. In this situation, it is probable that the consular officer didn’t issue you the visa pursuant to Immigration and Nationality Act (INA) Section 221(g), which gives the consular officer broad discretion to withhold the visa when it appears that the applicant is ineligible under section 212 or another section.
What you should know is that the law protects you and gives you ways to counter the decision. You can revalidate the original visa petition and prove to the consular officer that you deserve and are eligible for the visa.
The first thing you should know is that you can attempt to fix the problem during your interview at the embassy. A refusal under INA 221(g) requires the consular officer to clearly explain why he didn’t issue the visa, in terms of missing documentary requirements or required procedures that the applicant failed to comply with.
Once you’ve discovered where the problem lies, it would be easier to correct. You can then submit the missing documents or comply with procedural steps not taken. However, most applicants just turn around and walk away after being denied without asking the reasons for the denial.
In cases where the non-issuance of the visa cannot be corrected at the embassy, the petition is returned to the U.S. and will be subject to revocation proceedings. You should know that the Citizenship and Immigratioin Services (CIS) may revoke a visa petition for good and sufficient cause but only after the applicant is given adequate notice in writing of the intent to revoke and an explanation of the basis of the denial.
Again, you should know that the law provides the applicant with a chance to rebut and explain why a visa should be issued.
In the event that the CIS still revokes the visa petition after you present your rebuttal evidence, you should know that you can still file an appeal. The entity that has jurisdiction over preference petition cases is the Board of Immigration Appeals, which reviews the record and decision, and all derogatory evidence and rebuttal evidence of the applicant.
If your appeal is granted, then the petition is sent back to the embassy so that you can be issued your visa. If your appeal is denied, you should know that you can still file your case in Federal District Court.
Atty. Michael Templo is an admitted attorney in New York, USA and is a partner at Templo & Templo with offices in New York, USA and Makati City, Philippines. Atty. Templo specializes in US Immigration matters. The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional. For your comments and questions, Atty. Templo can be reached at mdt@templolaw.com or log on to www.templolaw.com.