Can I appeal my consular visa denial in court?

Consular denials come with no automatic right of appeal to U.S. courts, though some creative lawyering might help you succeed at this.

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Question

I am a businessman from Italy. I applied for and received an E-2 visa based on my investment in an American company about four years ago. I think the business is doing fine. But now the U.S. diplomatic mission in Rome denied my renewal application because it says my business is not going to generate enough money. I think this makes no sense. Can I appeal the decision in an American court?

Answer

You will probably not be able to appeal the consulate’s denial of your E-2 visa. However, if you have no alternatives, you could try to present a novel but plausible argument for taking the case to a U.S. court.

U.S. courts have traditionally refused to even begin to consider legal challenges to the decisions and other actions of consular officers, who have almost absolute power to grant or deny visa applications under U.S. law, even though they are still expected to comply with the regulations of their agency (the State Department).

There have been a few exceptions, however. U.S. courts have been willing to question consular decisions that impacted the constitutional rights of U.S. citizens and green card holders. For example, if your business has U.S. partners who think the denial of your E-2 visa affects their constitutional rights in any way (which would probably depend on the nature of your business), perhaps they might be able to appeal the decision on your behalf.

In rare cases, some U.S. courts have also been willing to question consular revocations (cancellations) of visas that had previously been granted. This is not exactly the issue in your case. But, perhaps, you could argue by analogy that, since you too were previously granted the E-2 visa (for which you now request a renewal) and you have already begun your investment in the U.S., you should also be allowed to take your case to court. (Obviously, new E-2 visa applicants would have a harder time making a similar argument.)

You might also slightly increase your chances of being heard in court by asking the State Department to issue an advisory opinion on your case before filing your appeal.

That said, even assuming a court were willing to entertain your appeal, your chances of success would still be very small, because courts usually like to defer a great deal to the opinions of government agencies regarding how those agencies need to do their job.

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