Nonimmigrant Visas

It is critical an applicant seeking to visit the Unites States apply for the correct nonimmigrant visa, and then prepare and present a strong case to the consul officer. If your visa is denied, there are strategies available to overcome the denial. A lawyer with expertise in visa processing may be able to pursue a waiver, reconsideration or reapplication, supervisorial review, an advisory opinion, or other strategies.

PLEASE CONTACT THE LAW OFFICE OF KENNETH JOSEPH HUTZ FOR ASSISTANCE WITH:

  1. Selecting the correct nonimmigrant visa type
  2. Preparing your visa application
  3. Visa denial waivers and other forms of relief

Nonimmigrant Visas

Nonimmigrant Visas allow a person to visit the U.S. temporarily for a specific purpose, such as tourism, study, or work. Most common nonimmigrant visa types include:

Visa Denials

An applicant whose visa has been refused needs to understand precisely why. The strategy for challenging the denial depends on the particular denial grounds. With certain exceptions, a consular officer should notify the applicant orally and in writing of the grounds of refusal. If the consular officer has not done so—or the applicant has not understood—the lawyer’s role may be to inquire further with the consular officer about the grounds of refusal. The three most common grounds for denying a visa are rooted in Immigration and Nationality Act (I.N.A.) sections 214(b), 212(a), and 221(g).



214(b) Denials

INA section 214(b) of the I.N.A requires consular officers to “presume” that certain nonimmigrant visa applicants desire to remain in the Unites States. Therefore, such applicants must prove to the officer’s satisfaction that they meet each of the requirements for a particular nonimmigrant visa. Consular officers often issue boilerplate refusal notices citing INA 214(b) as the basis for denial. The most common basis for issuance of a INA 214(b) letter is that the applicant failed to prove an unabandoned foreign residence or nonimmigrant intent. There is no waiver of this ground of ineligibility. However, applications may be encouraged to reapply for reconsideration with new information, or if they feel their denial was based on a mistake of law.

212(a) Denials

An applicant whom the consular officer has determined falls within the “grounds of inadmissibility” will be refused a visa under a INA subsection of 212(a). These grounds of inadmissibility are a set of rules prohibiting the admission to the U.S. of certain classes of persons for crimes, medical reasons, security, because they would likely become public charges, for prior immigration violations, and other miscellaneous grounds. There are exceptions and waivers available to many of the grounds. This ground of ineligibility is not permanent, meaning that the fact that a visa applicant was unable to establish nonimmigrant status at one time would not preclude the applicant from subsequently qualifying for a visa by showing a change in circumstances.

221(g) Denials

An application will be subject to a “quasi-refusal “under INA § 221(g) if a final determination is deferred by the consular officer. An applicant who has been refused under INA 221(g) need not complete a new visa application form or pay the visa application fee again, if less than one year has elapsed since the latest refusal. (If the delay is due to U.S. Government action, there is no time limit). When the reason for the deferral has been addressed, the visa application form is to be retrieved from the post’s files, the new information noted, and the visa either issued or refused.



Visa Denial Reconsideration or Reapplication

For nonimmigrant visa refusals–except INA §221(g) refusals—the only way to obtain “reconsideration” is to complete a new visa application form and resubmit the application.

The INA regulations provide that all nonimmigrant visa application denials should be reviewed by a supervisor. The Foreign Affairs Manual states that review may be deferred for not more than 120 days.

If the lawyer believes the refusing visa officer or the chief consular officer made a mistake of law in refusing an application, the lawyer should consider seeking an advisory opinion from the Advisory Opinions Division (AOD) of the State Department’s Visa Office. The AOD will not review assertions that the consular officer made a mistake of fact. If the request involves a legal question, the Public Inquiries Division will obtain the record from the consulate and forward it along with the inquiry to AOD. Attorneys generally receive at least an interim response stating a summary of the advisory opinion within 15 days. Advisory opinions on interpretations of law are binding on consular officers, but consular officers have exclusive legal authority to apply the law to the facts.

Other ways for a lawyer to challenge an unfairly denied visa application include first contacting the National Visa Center (NVC) of the State Department to question a consular officer’s action or inaction. Second, Lawyers may submit problems, issues, and complaints to the chair of the American Immigration Lawyers Association who meets regularly with the Visa Office. And third, humanitarian parole is an extraordinary measure used sparingly by the USCIS to grant parole temporarily if there are urgent humanitarian reasons or if there is a significant public benefit.

Visa Denial Waivers

Individuals denied a nonimmigrant visa can seek a waiver under INA 212(d)(3). This powerful discretionary tool requires obtaining a recommendation by the consular officer and an approval by the U.S. Customs and Border Protection Admissibility Review Office (ARO).

The requirements for the waiver are that: (a) the ground of inadmissibility must be one that can be waived under INA § 212(d)(3); (b) the applicant meets the requirements for the particular nonimmigrant visa, including the nonimmigrant intent requirement, if applicable; and (c) the applicant merits a favorable exercise of discretion. The decision whether to grant a waiver is based on the totality of the facts. In particular, the following three factors are relevance, recency, and seriousness of the activity or condition causing the inadmissibility; the reasons for the proposed travel to the U.S.; and the positive or negative effect, if any, of the planned travel on U.S. public interests.

There is no required form for the waiver application. The contents of the waiver application typically include, but are not limited to,

  1. A legal memorandum and index of exhibits from the lawyer.
  2. The applicant’s detailed declaration explaining his or her need to come to the United States and the need for a waiver.
  3. Letters of reference from individuals who know the applicant and can attest to his or her good character, contributions to the community, and reputation in the community.
  4. If inadmissible on criminal grounds, the applicant must provide certified copies of his or her criminal record and if possible evidence of reform and rehabilitation.
  5. In appropriate cases, a psychological evaluation.

If ARO approves the waiver, the consular post will issue the visa, which will contain an annotation that it has been issued pursuant to section 212(d)(3). The visa will not be valid for a period longer than the waiver.

Conclusion


It is critical an applicant seeking to visit the Unites States apply for the correct nonimmigrant visa, and then prepare and present a strong case to the consul officer. If your visa is denied, there are strategies available to overcome the denial. A lawyer with expertise in visa processing may be able to pursue a waiver, reconsideration or reapplication, supervisorial review, an advisory opinion, or other strategies.

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