My U.S. visa was denied. Now what?

People applying for a U.S. visa go to a local embassy with only one intention - to hear those magic words: “your visa is granted.” However, sometimes things do not go the way we want. You arrive for your visa interview with a smile on your face trying to be nice and friendly. You wait for your turn and approach a consular officer, he or she asks you a couple of routine questions, and you promptly provide your answers thinking – it is not as hard as I imagined. Everything seems promising. What could go wrong, right? Nothing, until the officer kindly returns your passport, oftentimes offering very little explanation of what just happened. Your visa was denied. Rather confused, you are leaving the embassy asking yourself numerous questions. In this article, we will try to address the most common of them.

Why was your visa denied?

Actually, there are not as many reasons as you think. Most visas are denied on a single ground – you failed to demonstrate that you are not a potential immigrant. Yes, you heard it right. The U.S. inevitably views you as a potential immigrant. When you apply for a nonimmigrant visa (e.g., B1/B2, F/M, etc.) and merely plan to have a great time while spending a couple of weeks in the U.S., you are still considered a potential immigrant. Unfortunately, it is no accident. The U.S. Congress expressly established the statutory presumption of immigrant intent in section 214(b) of the Immigration and Nationality Act. The statute specifically places the burden of proof on you to convince a consular officer that you have “ties” or “intend to return home.” Failure to do so will result in a refusal of your nonimmigrant visa. To put it in other words, even before you come to the U.S. embassy, your visa, de facto, has been already denied unless you show a consular officer at the interview that he or she is wrong about you. It sounds totally unfair, especially, when you had a little chance of showing anything at the interview because, first, an average interview lasts only minutes and, second, applicants are usually instructed to refrain from doing anything unless directed by a consular officer. But do not fell so bad about yourself because, in reality, even if you had a chance to argue, your argument would not make much difference anyway. Consular officers primarily rely on your application to determine whether you have “ties” that would compel you to leave the U.S. at the end of your temporary stay. Your answers at the interview just support that determination rather than making it.

What are “ties” and “intend to return home?”

There are probably not more ambiguous and vague terms than these. At the same time, some guidance can be offered. All decisions on visas are made on a case-by-case basis. So, clearly, a consular officer does not follow a check list in making a decision of whether you have strong ties to your home country and will return. Instead, he or she looks at the various aspects of your life that bind you to your country. For instance, among those are your possessions, employment, social, family relationships, and travel history. It should be emphasized that your home country and the region of your country where you reside are among the relevant factors for decision making purposes. Applicants from the regions with a high density of people having close relatives in the U.S. or frequently applying for U.S. visas will have a small chance of getting a visa. Also, applicants having an immigrant visa pending or applicants having immediate family waiting for an immigrant visa will have hard time proving that they do not have the intent to immigrate.

Can I find out what was the ground for the denial of my visa?

Kind of. As a matter of fact, this is one of those rare situations when you, as a foreigner, have a right to something. There are multiple theories circulating regarding how to get that information form the U.S. embassy. The most bizarre is to ask a member of the U.S. Congress (Senator or Congressman) to request the information from the embassy. First, it would be literally “mission impossible.” Second, there is no need because either you or any person acting on behalf of you (e.g., your attorney) can get the same information from the embassy. The problem, however, is that the obtained information would not be much use to you. The statute does not require the U.S. embassy to go into detail regarding the denial while responding to your request. Rather, it only requires a consular officer to state a legal ground for the denial of your visa. As a general practice, the embassy would send you a written response, a so-called refusal letter, citing the statute and containing a general statement that you were not able to demonstrate that your intended activities in the U.S. would be consistent with the classification of the nonimmigrant visa for which you applied. In simple words, you are not going to see in that letter what was the actual problem - the actual reason for the denial - and what you need to do to fix it.

Can I request an appeal for reconsideration?

Wait, it gets worse. Although it would be a reasonable move to request an appeal for reconsideration, you cannot challenge a consular officer’s decision. Speaking legalese, the doctrine of consular non-reviewability reflects the principle that a consular officer’s decision to deny a visa is immune from administrative or judicial review. The doctrine is based on the constitutional principle of separation of powers. Since the U.S. Congress has the exclusive power to exclude aliens altogether from the U.S., or to prescribe the terms and conditions upon which they may come to the country, and to have its declared policy in that regard promulgated and enforced exclusively through the Executive power (e.g., by consular officers), a consular officer's decision is shielded from review. The doctrine has been recently reinforced by the U.S. Supreme Court in the case Kleindienst v. Mandel, 408 U.S. 753 (1972). It is worth mentioning that a limited exception applies when the decision affects an immediate family member who is a U.S. citizen and who actually may assert a constitutional claim against a consular officer. Since you are not a U.S. citizen and, accordingly, do not enjoy constitutional rights, you have no right whatsoever to either request an appeal for reconsideration or sue a consular officer who denied your visa.

Should I reapply and when?

It depends. The good news is that your visa refusal is not permanent. The fact that you were unable to establish nonimmigrant status at one time would not preclude you from subsequently qualifying for a visa. The bad news is that applying again is relatively pointless unless you show a substantial change in circumstances. For instance, you were single when you applied for a visa for the first time and now you are married and have children; you did not own a place and now you are the owner of real estate; you did not travel and now you have a history of traveling to the hard countries to get a visa (UK, Canada, etc.); you did not have highly responsible job and now you do. The idea is that the range must be seen. Some people are dismissive of the latter. Having the status quo unchanged, they repeatedly apply for a visa assuming that the denial was a mistake because a consular officer probably did not pay attention and missed something in the application or at the interview. This misconception, unfortunately, results in multiple denials and a waste of time and money. “Do not be that guy!” Be conscious about it. When you apply for a visa for a second time, you must be sure that you do bring something new to the table. For example, if you had a travel history of visiting visa free countries, adding a couple of new trips to similar visa free countries will not change your case much and your visa will probably be denied again. However, adding trips to the hard countries to get a visa, like UK, will make a difference. At the same time, there is no universal recipe working for all because, as mentioned above, all decisions are made on a case-by-case basis. What works for one does not necessarily work for the other. And finally, do not forget that a consular officer is a human being as you are. We all are people and we are different. We are influenced by different things and, sometimes, we have bad days and make bad decisions. It is possible that a visa can be denied just based on how your personality was perceived by a consular officer at the interview. So, luck is another factor.

As you can see, unfortunately, your rights are very limited. You cannot fight back and request an appeal for reconsideration. But you can always reapply. Contrary to popular belief, you are not stigmatized or put in a blacklist. Certainly, when you reappear before a consular officer for a second time, he or she will definitely notice that you were previously denied a visa. At the same time, the officer will not use this record as a ground for another denial but rather as ground for a comparison of whether your situation has been changed. Accordingly, if it has, you have good chances to have your visa granted.

Mykhaylo Vsevolodskyy

Attorney at law | New York | Florida | Ukraine

This is not legal advice.