If you filed for an immigrant visa and received approval from the United States Citizenship and Immigration Services (USCIS), but the U.S. Consulate denied your visa application, you may be wondering what happens next.
USCIS Grants An Approval But The U.S. Consulate Denies a Visa Application
As strange as it might seem, having received an approval from USCIS does not guarantee that the U.S. Consular officer interviewing an applicant will approve the visa application. Take note that both organizations perform different functions in the immigration process. USCIS evaluates applications for immigrants and makes decisions on whether applicants meet the basic qualification requirements for the immigrant category sought:
- A foreigner is of extraordinary ability
- A qualified religious worker
- An immediate relative of a U.S. citizen
While these eligibility requirements might be a green light to an approval it focuses mostly on the relationship between the sponsor and immigrant, not on the immigrant’s eligibility for entry into the U.S.
Once the application process is completed by USCIS, the designated U.S. Embassies are responsible for ensuring that all intending immigrants to the U.S. are admissible; that is, that they are not subject to any grounds of inadmissibility such as criminal convictions, terrorist activities, previous immigration evasion amongst others.
Grounds As to Why U.S. Embassies Deny Visas
There are two main reasons why a U.S. Consul may deny an immigrant visa:
- The agent finds the intending immigrant inadmissible or
- The officer finds that USCIS made an error in approving the underlying immigrant visa application, which contained a misrepresentation or fraudulence
If a consular officer denies a visa interview he or she must provide an explanation for the denial. But if in the case an explanation is not issued immediately ask for a statement.
Visa Denial Based on Inadmissibility
The grounds of inadmissibility outlined in § 212 of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1182 are the most common reasons why officers deny immigrant visas. These inadmissibility grounds include (but are not limited to):
- Multiple criminal convictions
- Terrorist activities
- Misrepresentation
- Unlawful presence and
- Crimes involving moral turpitude
If an officer finds a person to be inadmissible pursuant I.N.A. Section 212, he or she might have the option to file a waiver to (petition for lawful forgiveness). If the waiver is approved, that person will be allowed to reapply for their immigrant visa and an immigration officer will no longer be able to deny a visa based upon the now-waived ground of inadmissibility.
Visa Refusal Based on Ineligibility Due to Fraud or Misrepresentation
In addition, the U.S. consul has the discretion to refuse an immigrant visa after discovering that USCIS erroneously approved the pending immigrant visa. Section 221(g) of the I.N.A. authorizes consular officers to adjudicate immigrant visa applications and to ask USCIS to revoke its approvals.
Since USCIS is accountable for processing immigrant applications, the Department of State (DOS) instructs officers to not re-adjudicate petitions, but rather deny a visa solely upon Section 221(g) if the officer knows, or has reason to believe, that the approval was entirely on fraud or misrepresentation. This burden is supposed to be high, to prevent consular officers from evading USCIS’s authority and doubting its approvals.
If a visa was rejected based on Section 221(g), the best option is to have the U.S. petitioner refile the immigrant visa petition. Note that the revocation process is lengthy and can take years to complete. To cancel a visa petition, the officer forwards the application along with the revocation request to the Department of State Kentucky Consular Center, which then forwards the petition to USCIS.
Following that part of the process, USCIS then re-adjudicates the petition and either affirms its original approval and returns it to the Department of State or releases a Notice of Intent to Revoke (NOIR) to the petitioner. The petitioner then has 30 days in which to reply. The USCIS will begin its review process again and if USCIS approves the petition a second time, the consular process will then begin afresh.
Get the Help You Need
If your immigrant visa application was denied, get legal advice before proceeding with your next decision. Gambacorta Law Office can be reached at 847-443-9303 for assistance.