Appealing a visa denial from a consulate or embassy

Recently, a colleague of mine asked for help with a non-immigrant visa that was denied at the consulate in Islamabad. Now, I have written in the past about B1/B2 denials, and how to overcome them. If you need help with that, give me a ring or email us. But what about other types of visas? In 2014, we had a rather special case, which will serve to illustrate this topic well.

A client, we'll call him Bob, came to us regarding his nephew, Sal. Sal was denied entry into the United States on a diversity visa (this would have led to a green-card, or legal permanent resident status). His denial was based on the alleged use of khat. We filed to have that determination overturned. While it was successful, it turns out, he was not eligible to come to the US for other reasons (don't get me started on, "things that your client conveniently forgets to tell you that later screw-up your case"). I thought, however, because my colleague asked for guidance on how to appeal an embassy or consulate denial, I would post my answer here. To wit:

The proper application is to request the consulate/consular officer reconsider the application per 22 CFR §42.81(c) which reads:

c) Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.

Need help with writing the appeal? Give me a ring! Happy to assist in reviewing or drafting the documents for the embassy. You send it to the non-immigrant email address for the given embassy, and I made a point of contacting the ombudsman at the State Department as well.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.	Lili O'connell, Esq. Charles Hatley, Esq.
1-800-579-9864	admin@hanoverlawpc.com

So you want to travel to the United States while your I-130/I-485 is pending? See how...

It is possible to travel to the US while your application is pending. There is a very important distinction: if you are already in the United States, and your sponsor (that's the person who filed the I-130) has filed a one step application (I-130/I-485 combined), you can only leave the US once you have an approved I-131 (advanced parole). See, 8 CFR 245.2. If your sponsor filed for consular processing (that is, filed just the I-130 while you are outside of the country), then this article applies to you! The following is an excerpt of a filing I recently made on this topic. In support of a B2 visit not effecting an adjust of status application, use the following:

1. A copy of the front part of the passport is at Exhibit 3.
2. This trip was approved under non-immigrant classification B2 (See, Exhibit 2); her stay on this trip was authorized through October 29, 2015. She maintains a valid visa through March 2016.
3. While traditional not considered a dual intent visa category, travel to and from the United States, while an immigrant visa is pending is not precluded under 8 C.F.R. §245.2 or 8 C.F.R. §204.2. Specifically, 8 C.F.R. §245.2 allows travel during pending adjustment when a an immigrant is properly paroled or admitted into the United States.
4. “With respect to the question of issuing a nonimmigrant visa to an alien registered on an immigrant visa waiting list, whether as the spouse or child of a permanent resident or on any other basis, the Department has long recognized the concept of ‘dual intent.’ The Department’s position in this respect has for many years been that an alien who is registered for immigration or who otherwise shows an intent to immigrate to the United States may nonetheless be issued a nonimmigrant visa if the alien can establish to the satisfaction of the consular officer that he or she intends in good faith to make a temporary trip to the United States and depart upon completion of his or her temporary trip.” U.S. Dep’t of State, Cable 92-State-193038 (June 17, 1992). See, 9 FAM §41.31 and 8 C.F.R. §214.1 and 214.2 regarding B1/B2 visas, application criteria and permissions associated with entry of those classifications.
5. At no time during their trip to the United States did [client] intend to stay in the United States (See, 9 FAM §41.31 at N3.1). She maintained a permanent residence [country] (See, INA §101(a)(15)(B)).
6. USCIS (and previous INS) rulings support the position that individuals may come to the United States during the pendency of their I-130 and even pending I-485. See, Instructive Memorandum, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 1996).
7. Finally, the Court has held that dual intent is permissible. See, Matter of H-R-, 7 I. & N. Dec. 651 (Reg. Comm'r 1958)(The fact that the applicant previously expressed a desire to enter the United States as an immigrant--and may still have such desire--does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant” for purposes of adjustment.); See also Matter of Wellhofer, 12 I. & N. Dec.

We ask, therefore, that the B2 visitation of [client] be recognized as properly issued by the consulate in [home country], and properly completed upon her return on [date of return].

Do you have an immigration question? Give us a ring at 703-402-2723 or 1-800-579-9864. We would be glad to discuss your case and see what relief you are eligible for.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.	Lili O'connell, Esq. Charles Hatley, Esq.
1-800-579-9864	admin@hanoverlawpc.com