What you should know if visa is refused

[Wayne and Claudia 40]

I thought I had posted this before but was unable to find it. It's something I think everyone should have at their interview in case the worst happens. May this form never have to be used by any VJ member.

VISA REFUSAL SHEET

We requested that our client present this notice in the event the consulate officer decides not

to approve visa issuance at the time of the consulate interview. In the spirit of collaboration on

issues, we make the following requests of the consulate officer:

(1) Review all evidence submitted for consideration to establish

eligibility or overcome a finding of ineligibility.

9 FAM 41.121 Note 7

(2) Please explain to Beneficiary the factual basis for visa refusal in a

manner so that Beneficiary can understand.

9 FAM 41.121(a) Reference to code section 221(g) alone is not sufficient.

(3) Place the factual reasons for the visa refusal on Form 221(g).

Note: The consulate is not precluded from disclosing the factual basis for visa refusal.

9 FAM 41.121 Note 2.3-3 & 9 FAM 40.4 Note 5

(4) Grant Beneficiary the opportunity to respond to consulate concerns.

We hereby request the opportunity to present additional evidence to the

consulate at a later date.

“Guidance on Petition Revocations,” U.S. Department of State telegram, R130616Z Jul 01

(5) Maintain the file at the consulate and not return the file to the NVC

at this time.

Note: For the present time, Beneficiary hereby waives the right for a speedy disposition of the case

by the consulate until beneficiary has had a chance to consult with our firm. 60 days is sufficient.

9 FAM 41.121(b)(1) & Note 2.3-1

(6) Request that the IV Chief please review the reasons for visa refusal.

9 FAM 41.121©

LEGAL MEMORANDUM

The Department of State Foreign Affairs Manual (FAM) offers guidance on overseas consular and

embassy affairs and policies. In addition to providing consular officers and staff with instructions

regarding visa processing, it also serves as a guidepost for visa applicants and their U.S. Citizen

petitioners as to what they should expect when applying for their visas with these agencies.

FAM instructions are derived from the Code of Federal Regulations (CFR). The Immigration and

Nationality Act (INA) together with the CFR and U.S. Constitution govern all matters pertaining to the

immigration and legal admission of foreigners into the United States.

Congress has granted consular officers the power to make the final determination regarding visa

issuance. Courts generally will not interfere with the decisions by consular officers under the doctrine of

consular non-reviewability. However, there are limits. Consulate officers must promote good

government by satisfying procedural and certain substantive due process rights.

We seek to ensure that fundamental due process rights to which visa applicants are entitled are

preserved during immigration proceedings, particularly during the visa interview. The fundamental right

for an applicant to present their case in full before a consular officer and be heard is in keeping with the

American spirit of justice and fairness (9 FAM 41.121 Note 7).

The following is a shortlist of consular obligations and duties during the visa interview, from the FAM.

(1) The consular officer must give full consideration to any evidence presented to establish

eligibility to receive a visa. (9 FAM 41.121 Note 7)

The consular officer must perform a detailed review of all evidence submitted at the interview that

serves to establish the bona fides of the petitioned relationship. Reasons for refusal must be evidentiary.

(2) When refusing a visa, the refusal must be based on legal grounds within the INA. In addition,

there must also be factual reasons for the denial, such as a specific comment made during the

interview or a questionable document presented. (9 FAM 41.121(a))

There must be concrete factual reasons in the record which would lead a reasonable person to believe a

relationship is insincere, thereby rendering the applicant ineligible to receive a visa. The consulate

officer musts avoid speculation. The reasons be well-documented for State Department records as well

as for the applicant. This enables protection for both parties, and shows good faith on the part of the

embassy to work judiciously with the applicant.

(3) The consulate must be specific in explaining the reasons for the refusal so the applicant has an

opportunity to respond and overcome a possible finding of ineligibility. (9 FAM 40.4 Note 5)

The visa applicant is entitled to know, verbally and in writing, the specific legal and factual reasons for

denial. The applicant cannot respond to consulate concerns if the consulate officer does not discuss.

(4) Grant the beneficiary a meaningful opportunity to respond to the consulates concerns.

(R130616Z Jul 01, “Guidance on Petitioner Revocations”)

The applicant must be given every reasonable opportunity to establish their eligibility—both during the

interview as well as after the interview should any discrepancies be found. Adequate time must be given

to respond to deficiencies. Summary dismissal of a case prior to the review of all relevant evidence

deprives the applicant of a fair hearing. Beneficiary should be given the chance to speak to her legal

counsel when responding to consulate concerns.

(5) Upon visa refusal, the consular officer must retain the original of each document upon which

the refusal was based, as well as each document indicating a possible ground of ineligibility,

and must return all other supporting documents supplied by the applicant. (9 FAM

41.121(b)(1) & Note 2.3-1)

Reasons for visa denial must be firmly connected to documentary evidence, and this documentary

evidence must be retained within the file for supervisory and Department review, as well as possibly to

correct error.

(6) Nonimmigrant refusals must be reviewed, in accordance with guidance by the Secretary of

State, by consular supervisors, or a designated alternate, to ensure compliance with laws and

procedures. (9 FAM 41.121©)

Consular officers must not immediately return a petition for which a visa was not issued to USCIS.

Instead, they must have it reviewed by their direct supervisor to obtain a second opinion prior to its

remittance. The supervising officer must confirm that all proper procedures (including those procedures

cited herein) have been followed, thereby ensuring that the applicant received a fair hearing, including

every reasonable opportunity to present his or her case. Should the supervising officer disagree with the

findings of the interviewing officer, the supervising officer may re-adjudicate the case.

[LotofPatience 65]

Good one, Wayne

Loto

[BellaRose 7]

Wow I wish I had this paper a year and a half ago...it would have saved me an extremely lengthy re-affirmation process. Anyway, a second interview should be coming up for us soon so I will be sure I will bring it with us this time in case they find some other bogus thimg wrong with our case. Besides the main obstacles I know we face they still seemed to throw in twenty other reason for denial that were easily corrected with evidence...Murphy's Law i guess. Thank you though I'll be needing it

[Ashley_Armando 1]

Thanks for the info!!

[cherriesss 4]

Very good information to have. Thanks, W&C!

[jennie ann 15]

Thanks for the useful info! I hope I'm not just being dense here, but any suggestions as to when and how to present this, should the need arise? And what would be the intended result/next steps?