ORDINARILY, there is no appeal process for visa refusals. Under the doctrine of “consular non- reviewability”, a person cannot even sue or appeal their visa refusals in US federal courts. The US Supreme Court ruled last year that the Embassy is not even required to provide a “detailed explanation” of the reason for the visa refusal.
So what can a person do if their visa was refused, and they believe the consul’s decision was wrong? There could be hope. It is possible, in some limited situations, to “appeal” a visa refusal to the US State Department in Washington DC. The limited situations deal with whether the consul’s “interpretation or application of immigration law” was correct. The State Department will only entertain requests for reconsideration involving legal issues, not factual determinations.
Immigration law can be complex, and subject to several possible interpretations concerning eligibility. If a visa refusal was based on an incorrect application or interpretation of immigration law, the State Department has the ability to clarify the legal issue with the Embassy, possibly clearing the way for visa issuance.
Not all visa refusals involve legal issues. For example, decisions made by a consular officer about a person’s eligibility for a visitor visa is NOT a legal issue; it is a factual determination, and not subject to review by the State Department.
However, interpretation and a child’s eligibility under the Child Status Protection Act (CSPA), or other types of situations, could involve “legal questions”, and if a child’s visa is refused because a consul determined the child is not CSPA eligible, the case could be “appealed” to Washington’s DC if the refusal involves legal issues or legal interpretations of the law.
Again, most visa refusals are final, and cannot be appealed, especially if based on factual determinations. However, if you, or someone you know, had their visa refused, and it involved a legal issue, you may want to seek the advice of an attorney, who can evaluate if your case can be submitted to Washington DC for reconsideration.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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