US & Canada | IMMIGRATION: Appealing a visa denial
IMMIGRATION CORNER
By Michael J. Gurfinkel, ESQ
Ordinarily, there is no appeal process for visa refusals at the Embassy. Under the doctrine of “consular non-reviewability,” a person cannot even sue the embassy or appeal their visa refusals in US federal courts. The US Supreme Court ruled the Embassy is not even required to provide a “detailed explanation” of the reasons for the visa refusal.
So what can a person do if their visa was refused, and they believe the consul’s decision was wrong? There could still be hope. It is possible, in some limited situations, to seek reconsideration from the Embassy or to “appeal” a visa refusal to the US State Department in Washington DC. The limited situations deal with whether the consul’s “interpretation or application of immigration law
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” was correct. The State Department will only entertain requests for reconsideration involving legal issues, not factual determinations.
Immigration law can be complex, and subject to several possible interpretations concerning eligibility. If a visa refusal was based on an incorrect application or interpretation of immigration law, the State Department has the ability to clarify the legal issue with the Embassy, possibly clearing the way for visa issuance.
If a visa refusal involves decisions made by a consular officer about a person’s eligibility for a visitor visa, it is a factual determination, not subject to review by the State Department.
However, interpretation of a child’s eligibility under the Child Status Protection Act (CSPA), or other types of situations, could involve “legal questions,” and if a child’s visa is refused, the case could be “appealed” to Washington’s DC if the refusal involves legal issues or legal interpretations of the law.
Again, most visa refusals are final, and cannot be appealed, especially if based on factual determinations. However, if you, or someone you know, had their visa refused, and it involved a legal issue, you may want to seek the advice of an attorney, who can evaluate if your case can be submitted to Washington DC for reconsideration.
Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
Courtesy: The Phil Star
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