Most U.S. visa applications are approved—as many as 86% in fiscal year 2021. But what happens if you are denied? Getachew & Ansari Immigration Attorneys, P.C. explains what you can do if your U.S. visa application is rejected.
Can You Appeal If Your Visa Application Is Denied?
Some denied visa applications and other immigration matters can be appealed to the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA) in the U.S. Department of Justice. If your case can be appealed to either of these authorities, your denial notice will state how to appeal.
Introduction to Visa Denials
U.S. Embassies and Consulates have the sole authority to adjudicate visa applications.
The AAO has jurisdiction over about 50 types of cases. Some cases that the AAO cannot hear can be heard before the BIA. Not every type of case can be appealed.
Examples of appealable cases include:
- Fiancé (I-129F) petitions
- Waiver of inadmissibility applications (Form I-601)
- Application for permission to reapply or admission following removal (Form I-212)
- Some special immigrant visa petitions (Form I-360, with widower appeals to BIA)
- Application to preserve residence for naturalization purposes (Form N-470)
- Application for certificate of citizenship (Form N-600)
- Application to replace a certificate of naturalization and citizenship (Form N-565)
- USCIS field office revocations of certain decisions
This is not a complete list.
BIA appeals are usually taken from removal orders issued by immigration judges. BIA also reviews Form I-130 immigrant petitions for alien relatives.
Common Reasons for Visa Denials
- Not having enough information
- Medical ineligibility
- Criminal record, drug history
- Likely to become a public charge
- Not qualifying based on the standards for the visa
- No affidavit of support where one was required
- Previous overstay in the United States
- Fraud or misrepresentation
- Unlikely to depart after the period of the visa
Understanding Your Denial Notice
Usually, if your visa is denied, officials will provide a reason. It is called being found ineligible.
Sometimes, you may take steps to overcome the ineligibility. If your application is incomplete, you have one year to provide the missing documents. Otherwise, you must start a new application.
If your case is referred for administrative processing, the consular officer cannot make a decision and has asked for additional involvement in processing your application. You will be contacted again once a decision has been made.
Waiver of ineligibility
Someone who is denied a visa may qualify for a waiver of ineligibility, based on a particular ineligibility. DHS decides whether to grant a waiver. It is discretionary, so it may not be granted, even if you qualify. If applicable, you will receive instructions on how to apply.
Steps To Take Immediately After a Denial
You have a limited amount of time to appeal so do not wait. Revocation of petition approval can be as short as a 15-day appeal period while other cases have a 30-day appeal window.
If your visa is denied, read the denial carefully. You may:
- Overcome the ineligibility
- File an appeal
- Ask for reopening or reconsideration
- Apply for a waiver
- File a new application
What you can do, and what is likely to be successful, depends on your specific situation. You must determine your eligibility to appeal, prepare documents and evidence, and complete the appropriate process.
If you are found ineligible for a visa, can you get your money back?
No. Visa fees are non-refundable.
Possible Outcomes of an Appeal
An appeal may be sent back for processing. It may be granted, or you may be denied for a different reason. The original denial may be affirmed.
It can take up to 180 days to receive a decision from AAO. While AAO decisions usually do not establish precedent, AAO may adopt a decision to provide policy guidance to employees in future cases.
Alternatives To Appealing a Visa Denial
There may be alternatives to appealing a visa denial. You may motion to reopen the case or ask for reconsideration. A motion to reopen must assert new facts that could change the outcome. A motion to reconsider is based on incorrect application of law or policy.
In addition, you may be able to apply again. In that case, you submit a new application and pay the filing fee. If you are denied under INA § 221(g) because of an incomplete application, you can provide missing documents and ask for reconsideration.
What is certification?
If USCIS asks for certification, they are asking the AAO to review an initial decision. Certification may occur in cases that present an unusual or unique question that may be legal or factual.
Even if there is no appeal right in a case, USCIS may certify the case for AAO review.
Can you take a visa denial to a U.S. court?
In Department of State v. Muñoz, 23-334 (2024), the court ruled that U.S. citizens do not have due process rights for non-citizen spouse admission to the United States. There is no constitutional right to review a denied visa.
In the Muñoz case, the applicant was denied admission because they may engage solely or incidentally in unlawful activity. The applicant speculated that the denial was related to suspected gang membership.
The court upheld the doctrine of consular nonreviewability, citing United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 547 (1950). The court said that the right to reside with a nonresident spouse in the United States is different from the right to marry. The court said that the citizen spouse does not have a procedural due process right in their spouse’s immigration proceeding.
Contact an Experienced Immigration Lawyer Today
If you have a denied visa application, you may qualify to appeal. You must work quickly and take the right steps to appeal. Getachew & Ansari Immigration Attorneys, P.C. represents people in a variety of immigration matters. We can provide representation at any stage of the case so contact us right away to review your case and get legal help.
