Dealing with a Consular Processing Refusal

If your immigration petition has been approved and you are out of the US, you must apply for an immigrant visa at an US Embassy or Consulate. The process of applying and obtaining an immigrant visa at an US Embassy or Consulate abroad is known as consular processing.

Process

Foreign spouses of US citizens can apply for consular processing immediately upon the approval of their immigration petitions. Aliens who have applied for a green card under other family based and employment based categories must apply when their priority date becomes current. The application for consular processing must be made on Form DS-230. You must submit the application form along with evidence of your eligibility, affidavit of support signed by your sponsor, police certificate from every country you lived in for more than a year since the age of 16, application fees and biometric fees to the US Embassy or Consulate. The application fee varies from country to country. The biometric fee is $80. You will be called for an interview. You must also undergo a medical examination.

Grounds for Denial

Generally once your immigration petition is approved, consular processing is rarely refused. However the consular officer may reject your application for consular processing. Under Section 221 of the Immigration and Naturalization Act immigrants can be denied entry to the US on health, foreign policy, criminal, security and national interest grounds.  Although the USCIS is the primary authority that determines the eligibility of an alien for immigration to the US, the US Embassy or Consulate may conclude otherwise and ask the USCIS to revoke its approval for the immigration petition.

Options

One of the biggest disadvantages of consular processing is the lack of due process. There is no procedure for appeal if your application for consular processing is denied. If the consular officer denies your application for consular processing, your only option is to seek a review of the officer's decision by a senior officer. If the senior officer too denies your application, then you have no recourse. You cannot challenge the decision in a court of law in the US. You cannot enter the US unless you have a non-immigrant visa or you have obtained an advance parole. However denial of an application for consular processing does not bar your from submitting a fresh immigration petition.

Getting legal help

Dealing with a consular processing refusal is complex. You will need the assistance of an experienced US immigration attorney who can study your case and advise you on your future course of action.