Nonimmigrant Visa Denials at U.S. Embassies and Consulates
Q: I was recently approved for H-1B classification including change of status. My wife and son went to the consulate for derivative H-4 visas but the consular officer denied the requests. What are the requirements for a derivative H-4 visa?
A: The regulations regarding derivative classification states that “spouse and children of a principal alien classified H-1B… who are accompanying or following to join the beneficiary to the U.S., are entitled to H-4 classification and are subject to the same visa validity, period of admission, and limitation of stay as the principal alien.” Despite the clear language in the regulations, consul officers frequently deny derivative visa requests if the principal alien entered the U.S. as a visitor and later changed status to H-1B. Also, principal aliens that enter as a visitor and later changed status to H-1B, are also experiencing visa denials when they travel back to the Philippines and request the H-1B visa stamp form the U.S. embassy.
Q: A written decision of the refusal was not issued nor was a specific reason given to support the denied derivative visas. Are consul officers required to provide reasons for denials?
A: Yes, in a State Department memo to U.S. Embassies and Consulates, consul officers are reminded that they must inform applicants, orally and in writing, of the law upon which a refusal is based. It is also State Department policy that consul officers should explain the factual basis for a denial.
Q: Can a decision of a consul officer be appealed?
A: Decisions of U.S. consul officers are generally not reviewable by U.S. courts. However, there are remedies available to aliens with visa refusals. The appropriate course of action will depend on the particular facts of each case including the grounds for visa refusal. Possible options may include a request to reconsider; request for supervisory review; or request for an advisory opinion from the State Department.
Q: Why do consul officers deny nonimmigrant visa applications?
A: There are several reasons why consul officers deny nonimmigrant visa applications. Most denials are based on an officer’s belief that an alien wants to reside permanently in the United States. If an applicant cannot produce sufficient evidence that he or she will return to the home country when the nonimmigrant visa expires then the visa request will be denied.
However, certain nonimmigrant work visas such as H-1B and L-1 incorporate the doctrine of “dual intent” which essentially prohibits consul officers from denying such visas for lack of significant ties to the home country. Other grounds for visa refusal include insufficient documentation and inadmissibility.
Q: What advice would you offer nonimmigrant visa applicants?
A: It is critically important to understand that a visa denial can create a permanent blemish on an alien’s immigration record. Consul officers are required to make a record of denials in the Automated Visa Lookout System (AVLOS), which is used by consulates and immigration officials worldwide.
When communicating with a consul officer you should be polite. Approach visa problems constructively, and realize that the applicant’s perception of what occurred at the consulate may differ from the perception of the consul officer.
Applicants should not contact congressional offices to request direct intervention unless the issue concerns an abuse of power. If a consul officer is abusive or unreasonable, then a complaint can be directed to the supervisor at the Embassy or Consulate.
If you or a family member are experiencing visa denial issues or plan to apply for a visa then contact our office for a consultation with an experienced immigration attorney who can discuss possible options.