Denials of Visas or Green Cards & Your Legal Options
Sometimes U.S. immigration authorities mistakenly deny a visa or green card application. They process huge quantities of these applications and may overlook or misinterpret information in them. However, if your application is lacking, you may be able to adjust or add to it in a way that addresses the reason for the denial. If you simply forgot to submit a necessary document, or if the government made a basic error, you can probably fix the problem on your own. If a denial arises from a more complicated issue, retaining an immigration lawyer may make a huge difference in resolving the problem and getting your legal status in the U.S.
A denial of the initial visa petition, such as Form I-129, Form I-130, or Form I-140, probably is not worth appealing. You have the right to an appeal, but it usually makes more sense to file a new application, even if the denial arose from a mistake by the government. Rather than pointing out the error, it tends to be simpler to complete the form again and trust that the government will not make the same mistake twice.
It is often easier to file a new visa or green card petition than to appeal a wrongly denied petition.
Denial of a Visa at the U.S. Consulate
You do not have a right to appeal a denial of a non-immigrant visa by a U.S. consulate in your home country. However, you can ask the consulate about the basis for the denial. This likely will give you the information that you need to file a new application that will be approved.
If the consulate officer denies an application for an immigrant visa, they will explain the basis for the denial. Often, a denial results from a lack of necessary documentation to support the application. A foreign national can supplement the application materials within a one-year period after the denial. If the additional materials satisfy the consulate officer, they will approve the visa application. Otherwise, the consulate officer will close the application, and the foreign national will need to restart the application process. You cannot appeal a denial or closure. (You should be aware that a delay in getting your visa does not necessarily mean that it will be denied. Administrative processing delays can be protracted, but there is not much that you can do to expedite the process.)
The consulate may follow its denial of an application by asking USCIS to revoke the petition that formed the basis for the application. If this happens, the foreign national will need to supply additional evidence to persuade USCIS not to revoke the petition. You can get another interview if you can convince USCIS to send the petition back to the consulate. However, the bureaucratic process may take a very long time. In extreme cases, a foreign national may want to contact their U.S. sponsor to see if they can ask their congressperson to look into the situation.
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An experienced immigration lawyer may be helpful in determining what to do when a green card or visa is denied. Justia offers a lawyer directory to simplify researching, comparing, and contacting attorneys who fit your legal needs.
Denial of a Green Card During Adjustment of Status
In some cases, you can appeal a denial of a green card in the adjustment of status process, but usually you will not be allowed to appeal. Any appeal will go through the Administrative Appeals Office of USCIS, where an officer will review the basis for the denial. You must file an appeal and pay the required fee within a certain time window. You should review the notice of denial to find the deadline.
More commonly, a foreign national can file a motion to reopen or reconsider their case. A motion to reopen or reconsider goes back to the USCIS official who denied the initial application, rather than going to the Administrative Appeals Office. A motion to reopen means that your circumstances have changed since the initial decision, such that you have a stronger basis for a green card. By contrast, you can file a motion to reconsider if you believe that the officer made a mistake in denying the application. In very unusual situations, you might be able to challenge a denial by bringing a lawsuit in federal court.
Unfortunately, USCIS may start removal proceedings if the denial of your application for a green card means that you no longer have a legal basis to stay in the U.S. You can present your argument for a green card to an immigration judge in that proceeding. You should be aware that lying in your application or to an immigration judge, or failing to appear for a court date, can have serious consequences that cripple your ability to get legal status in the U.S. for a long time to come. Even if you are frustrated with the system, you should not break the rules.