The U.S Immigration and Nationality Act (“INA”) provides two grounds for a visa denial, Section 221(g) and Section 212(a):
(1) Section 221(g) of the INA authorizes a visa denial when there is insufficient documented evidence to warrant the issuance of the visa requested, or when the embassy has not yet completed processing the visa application. In such a case, a denial can be overcome by providing the embassy with the missing documents or when the embassy has completed processing the visa application. Examples of missing documents may include affidavits of support, job offer confirmation, police certificates, proof of local employment, tax documents and court records relating to criminal convictions.
(2) Section 212(a) of the INA is much more difficult to overcome. Under this provision of the law, a visa may be denied because the embassy has found the applicant inadmissible (barred from re-entering the United States) due, for example, to a previous overstay in the U.S, a misrepresentation to an immigration official, a criminal conviction, or a false claim to U.S citizenship. Some of these bars to re-entry can be cured (waived), while others cannot.
Many visas are properly denied under section 212(a) on the basis of an applicant’s inadmissibility. However, when a visa has been improperly denied and there is a factual basis for rebutting the embassy’s decision, certain legal remedies are available. While visa denials cannot be appealed, U.S Federal Regulations under 22 C.F.R § 42.81 do allow applicants to file a Motion to Reconsider which, under legal precedent, U.S embassies have a “non-discretionary, ministerial duty” to review.
When a visa has been denied under section 212(a), the first step is to determine whether section 212(a) has been correctly applied. If section 212(a) hasn’t been correctly applied as evidenced by new facts, a Motion to Reconsider may be submitted. If section 212(a) has been correctly applied, then a waiver of inadmissibility, if available, may be requested. In any event, prior to pursuing any legal remedy for a visa denial, applicants should seek the assistance of a competent and experienced business immigration attorney.
A visa denial can be devastating particularly when a foreign national has invested considerable time, effort and money towards acquiring permission to enter the United States for work or business. Nothing is more frustrating than preparing for a new job or taking all the steps necessary to start or grow a new business (including interviewing prospective employees) in the U.S, only to have a U.S consular officer or immigration official put a firm halt on one’s plans. While there is no guarantee that a Motion to Reconsider will ultimately yield the desired visa, hiring a competent and experienced business immigration attorney under such circumstances will ensure that every possible remedy towards lawful entry into the United States is duly pursued.
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Gold Law Group assists clients with a wide variety of business-related immigration matters including visa denials. If you are a foreign national who has been denied a visa, or if you are a U.S employer whose foreign employee has been issued a visa denial, please call 323.394.1281 or contact us online to schedule a consultation.
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