Visa or Green Card Denied: What to Do

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First, a word of reassurance to anyone applying for a visa, green card, or other U.S. immigration benefit: None of the government agencies that deal with these matters are biased toward denying visas to eligible applicants -- though they are forced to make quick decisions in the case of many temporary visa applications. When it comes to green card (also called immigrant visa or lawful permanent residence) applications, however, they will usually give you many chances to supplement your application and make it worthy of approval.

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SEE AN EXPERT

If your visa or green card has been denied, think about getting a lawyer. This advice is particularly important if the denial was due to something more serious than a bureaucratic mistake or a lack of documentation on your part. You will definitely need a lawyer for the complicated procedures mentioned below, including removal proceedings and motions to reopen or reconsider.

If USCIS or the consulate denies an application further along in the process, your response will depend on what you are applying for and where you are -- in the U.S. or overseas. We'll cover some of the most common scenarios below.

Denial of Visa Petition

If U.S. Citizenship and Immigration Services (USCIS) denies your initial visa petition; for example, a Form I-129 (for temporary workers), I-129F (for fiancés of U.S. citizens) I-130 (for family-based immigrants), or I-140 (for immigrant workers), the best thing is usually to start over and file a new one. This is true even if a lawyer is helping you.

There is an appeal process, but hardly anyone ever uses it. You are likely to spend less time starting over, and the fee is about the same. Besides, no government agency likes to admit it was wrong, so there is a tactical advantage to getting a fresh start.

Denial of Green Card After Applying to Adjust Status in the U.S.

If you are applying for adjustment of status (a green card) in the United States, there is technically no appeal after a denial. If you have no other legal right to be in the United States when the application is denied (such as a pending political asylum application or a temporary work visa), you may be placed in removal proceedings in Immigration Court. There, you will have the opportunity to renew your green card application before an immigration judge. In rare circumstances, you might need to file a motion to have your case reopened or reconsidered; or you may need to file a separate suit in federal court.

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CAUTION

Never ignore a notice to appear in Immigration Court. Attorneys regularly receive questions from immigrants who were scheduled for a hearing in Immigration Court and either forgot, couldn’t make it, or just hoped the problem would go away. Failing to appear for a court date is the worst thing you can do to your hopes of immigrating. It will likely earn you an automatic order of removal (deportation), which means that USCIS can pick you up and send you home anytime, with no more hearings. You will also be hit with a ten-year prohibition on returning to the United States and further punishments if you return without inspection (illegally).

Denial of Nonimmigrant (Temporary) Visa at U.S. Consulate

If you are applying for a nonimmigrant visa through a consulate overseas, you have no appeal after a denial. The consulate is at least required to tell you the reason for the denial, and often the fastest thing is to fix the problem and reapply.

Denial of Immigrant Visa at U.S. Consulate

If you are applying for an immigrant visa (lawful permanent residence), the consulate will give you one year after the denial of your visa application to provide information aimed at reversing the denial. At the end of the year, your application will be closed and you must start all over again. There is no appeal from the denial or the closure.

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CAUTION

Don’t attempt multiple, inconsistent applications. The U.S. government keeps a record of all your applications and will be happy to remind you of any past fraud or other reasons for inadmissibility. (Changing your name won’t work—by the end of the application process, the immigration authorities will have your fingerprints.)

If your case turns into a true bureaucratic nightmare or a genuine miscarriage of justice, your U.S. citizen or permanent resident spouse can ask a local Congressperson for help. Some of them have a staff person dedicated to helping constituents who have immigration problems. A simple inquiry by a Congressperson can end months of USCIS or consular stonewalling or inaction. In rare cases, the Congressperson’s office might be willing to put some actual pressure on USCIS or the consular office.

by: , J.D.

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