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If you have receive a denial for a petition with USCIS or your visa has been refused by the U.S. State Department, you are likely very frustrated. You certainly should understand all of your options and investigate what will be the best strategy for your situation.
Sometimes you will want to act quickly and seek to have the U.S. government change its decision through an appeal, filing a motion, or pursuing a change through a less direct channel. Other times the best approach is to make sure you clearly understand the basis for the denial and then reapply with a stronger application.
If you have petitioned for a family member, or applied for a green card or work permit or sought another benefit with USCIS, unfortunately there is always the chance that your request will be denied. The reason for the denial can be that you simply do not qualify due to your personal history. Or a denial can result because you did not provide enough proof to persuade USCIS to act in your favor.
There are usually a few different options available after receiving an unwelcome denial: filing a Motion to Reconsider, a Motion to Reopen, or pursuing an Appeal. Alternatively, you could seek help through an Infopass appointment with USCIS, your congressperson, or the independent USCIS Ombudsman. In addition, you could have an immigration attorney exert pressure through the American Immigration Lawyer’s Association’s (AILA’s) official liaison.
You carefully filled out your online visa application form. You believe you brought all of the necessary supporting evidence to your interview at the U.S. consulate, including financial, family, and employment documents. You are excited to visit your family, study on a student visa., or permanently immigrate to the U.S.
However, after the consular officer asked you a few questions and perhaps glanced at a few of your documents, you are told that “unfortunately we cannot approve your visa and here is a piece of paper referencing the basis for the refusal.” You will then be given a brief document that lists the section of the U.S. Immigration and Nationality Act (INA) which makes you ineligible for a visa.
Once you learn your visa has been refused, try your best to put aside any shock and anger and start thinking of your next best step. Dealing with the U.S. immigration system is often like a chess match, and so planning your next moves is crucial.
A common section of the INA listed for refusals for tourist and student visas is 214(b). This section of the law requires that you, the applicant, give enough proof to show that you do not have “immigrant intent.” Typically you have to demonstrate that you have sufficient ties to your home country so that you will definitely return and not overstay your visa in the U.S.
If your immigrant visa was refused, then you have up to one year to file a Motion to Reconsider. You could alternatively seek Supervisor Review at the consular post. In addition, you could pursue an Advisory Opinion from the Visa Office of the U.S. State Department. This option is best if you have good reason to believe the refusal was the result of a mistake of law.
Also, it’s possible that the consular officer will state that you need to submit a waiver in order to have a chance at getting the visa approved. These waivers require thorough preparation with a well-organized presentation of the supporting documents showing why you should be approved.