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 permanent residence (also called immigrant visa or green card) applications, however, they will usually give you many chances to supplement your application and make it worthy of approval.
SEE AN EXPERTIf 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 U.S. Citizenship and Immigration Services (USCIS) or the consulate denies an application, 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.
If 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.
If you are applying for adjustment of status (a green card) in the U.S. and receive a notice telling you that your application has been denied, read the notice carefully. One of the things USCIS will tell you is whether you can appeal the denial, and if so, how. In most situations there is no appeal after a denial. If the law allows you to appeal, you can ask USCIS's Administrative Appeals Office (AAO) to look at your case and see whether the USCIS officer wrongly denied your green card. There will be a fee and a deadline for filing the appeal—don't miss it.
If you're not allowed to appeal, you can do the next best thing: file a motion to have your case reopened or reconsidered. These motions are different than an appeal because you're basically asking the same person who denied your application to change his or her mind—your case is not transferred to the AAO. A motion to reconsider is what you file when you think the officer denied you for a wrong reason. You file a motion to reopen when the situation has changed or new facts have come to light since the officer made the deicsion denying your green card.
In the rare case, you may need to file a separate suit in federal court challenging the denial. You would need the assistance of an attorney to detemrine whether that's even possible.
If you have no other legal right to be in the U.S. 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.
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 U.S. Immigration and Customs Enforcement (ICE) 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 U.S. and further punishments if you return without inspection (illegally).
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 (if possible) and reapply.
If you are applying for an immigrant visa (lawful permanent residence) and get denied, the consulate will tell you why. A common reason for denial is that your application was incomplete and that further documentation is required to make a favorable decision. So the denial is not permanent—you'll have one year to provide information aimed at reversing the denial. If a year goes by and you can't satisfy the visa officer with the necessary proof, your application will be closed and you must start all over again. There is no appeal from the denial or the closure.
Sometimes people do not get their visas right away, but it's not because of a denial. Rather, it's because something—often a security check—is preventing the visa officer from making a decision. This is "administrative processing," and it's a frustrating thing for the visa applicant. If it happens to you, you won't be told why your case is in administrative processing, or how long it might take. You will just have to be patient.
If the consulate denied an immigrant visa, in some circumstances it sends the case back to USCIS, asking it to revoke the petition on which the visa application was based. Your goal in this situation is first to satisfy USCIS that the petition should not be revoked (usually with additional proof), and that it should send the petition back to the consulate so you can get another interview. Then you're going to have to convince a skeptical visa officer to give you the visa. If this happens to you, be prepared for it to take years to resolve your case—the back-and-forth between the consulate and USCIS is not quick.
If your case turns into a true bureaucratic nightmare or a genuine miscarriage of justice, your U.S. sponsor 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.
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.)