Most practitioners assume they have little or no ability to challenge a consular officer’s decision to refuse an immigrant or nonimmigrant visa application. That is because the Supreme Court has held that applicants may not challenge factual findings or discretionary decisions of consulates. Kleindienst v. Mandel, 408 U.S. 753 (1972). The doctrine of non-reviewability is based on Congress’s plenary power to pass laws and delegate to the executive branch – in this case the Department of State (DOS) – the authority to admit or refuse foreign nationals from entering the United States. As the Court held: “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it…” Id. at 770. But that doctrine still allows for challenges based on legal interpretations rather than factual findings.

The Visa Office serves many functions. For example, it provides guidance, training, and support to consular officers to ensure that visa adjudications are conducted fairly, consistently, and in accordance with established legal standards. It is responsible for implementing various visa-related programs and initiatives, such as the Visa Waiver Program and the Diversity Visa Program. The Visa Office collects and analyzes visa issuance data to identify trends, patterns, and potential security threats. By using data analytics and intelligence-gathering capabilities, the Visa Office tries to enhance visa screening processes, detect fraudulent activities, and mitigate risks to national security. The principal goal is to balance effective border security with the facilitation of legitimate travel and commerce.

As immigration practitioners, we are more interested in the Visa Office’s role in administering visa adjudication and overseeing the work of the consulates. For that reason, it is important to know when the Visa Office can be called on to intervene in a consular officer’s negative decision on a visa application. The answer may depend on when and how you reach out, as well as what you include in your request for intervention.

Most consular refusals are based on one of the following findings:

• more documentation needs to be submitted to establish eligibility;
• the applicant is inadmissible and needs to submit a waiver (if one is available); or
• the underlying petition should not have been granted and will be returned to the U.S. Citizenship and Immigration Services (USCIS).

Common factual disputes concern findings of immigration fraud, the triggering of unlawful presence or “permanent” bars, the sufficiency of an affidavit of support, and security-related issues. The applicant can request reconsideration to the consular post that issued the refusal; this request is usually accompanied by the submission of additional documentation or evidence. While such a request may be honored by senior officials at the consulate, they rarely result in a reversal.

What, if anything, can be done to challenge the visa refusal? After striking out with the consulate, the applicant can file an “administrative appeal” by seeking intervention from the Visa Office. That is commenced by sending a request to the Legal Adviser for Consular Affairs through its email address: legalnet@state.gov. The Visa Office may have jurisdiction to review and reconsider the consular officer’s decision, particularly those involving immigrant visas based on family relationships, employment, or special immigrant categories. But its jurisdiction is limited to legal questions regarding the interpretation of U.S. immigration law in a specific case. The following is a summary of the Visa Office’s jurisdiction, or what it considers are “in-scope” questions, based on 9 FAM section 103.4-2:

• Legal questions about a specific case when an applicant has tried to contact post at least twice regarding the specific issue without receiving a final response, and where 30 days have passed since the second inquiry;
• Legal questions about a specific case in which an applicant or attorney has received a final response from post, but believes it to be wrong as a matter of law;
• Legal questions about specific cases involving T visas, U visas, diversity visas, or adoption cases; and
• Legal questions about specific cases involving the Child Status Protection Act or the Violence Against Women Act.

The following are considered “out-of-scope” categories of inquiries where the LegalNet will not provide a response:

• Questions related to visa status;
• Questions related to scheduling an appointment;
• Questions related to the status of a waiver of INA § 212(e) for certain J visa holders;
• Questions related to updates on necessary administrative processing; and
• Questions about the factual basis for visa refusal.

All inquiries should refer to only one case per e-mail and the subject line must include:

• NVC case number or USCIS receipt number, and passport number;
• Principal applicant’s full name as it appears on the passport;
• Citation to the relevant statute or regulation at issue;
• Brief summary of the issue or question of law;
• Copies of previous correspondence with the embassy or consulate, as well as other relevant documentation; and
• The name of the embassy or consulate processing the case.

The key to getting Visa Office assistance is to make sure you phrase the request as a legal question. Many consular refusals contain both questions of law and fact. The following are some examples and how the practitioner might want to phrase the LegalNet request:

1. Refusal: The consulate finds the immigrant visa applicant had triggered the permanent bar by accruing more than one year of unlawful presence followed by an attempted illegal reentry (EWI). The client claims to have remained abroad for ten years following his departure and swears he never tried to reenter the United States EWI. The practitioner reached out to the consulate for an explanation of the factual finding. The consulate just sends a boilerplate response repeating that the client was found inadmissible under 212(a)(9)(C)(i)(I).
   Wrong phrasing of inquiry to LegalNet: “The consulate has refused a visa based on an improper finding that the applicant triggered the permanent bar and needs for you to review this?
   Right phrasing: “Can the consulate require an immigrant visa applicant to submit a Form I-212 waiver after he has remained abroad for ten years if, during this period, he neither sought to enter the United States illegally nor re-entered illegally.”
2. Refusal: The consulate finds the immigrant visa applicant is inadmissible for public charge after determining that the joint sponsor has no family relationship to the applicant or any credible reason for aggreging to support him. It then revokes the provisional waiver that had been approved.
   Wrong phrasing of inquiry to LegalNet: “The consulate has refused a visa based on public charge even though the applicant has submitted an affidavit of support from a joint sponsor that satisfies the minimum income requirements. Can you please review this decision?
   Right phrasing: “Can the consulate condition the granting of an immigrant visa on the applicant’s submission of an affidavit of support from a joint sponsor who is a family member?”
3. Refusal: The consulate found that the applicant had committed immigration fraud and denied the immigrant visa application. The client reports that the consular officer asked questions about how she was able to qualify for voluntary return to Mexico after an arrest at the border since she is from Honduras. did not have a qualifying relative and thus could not file a waiver.
   Wrong phrasing of inquiry to LegalNet: “Can the consulate deny an immigrant visa based on what happened at the border when the applicant was arrested by CBP?
   Right phrasing: “Can false statements made to CBP officials after an arrest at the border and during processing for voluntary return satisfy the elements of immigration fraud since the applicant is seeking neither admission to the United States nor a benefit under the INA?”

Inquiries phrased as legal questions will be considered in-scope and will result in the Visa Office investigating the case. It will request the case file from the consulate and do an independent review of the findings, legal interpretation, and decision. In most cases, the practitioner can expect a response within a matter of weeks. If no response is received within 30 days, the agency suggests submitting a follow-up email along with copies of any earlier correspondence.

One reason to seek intervention from LegalNet is to discover more details about the consulate’s factual finding. In many cases the consulate makes a finding without explaining how it reached its conclusion, what statements the client made during the interview, or what other information was in the applicant’s file. The response from LegalNet will provide those details as a way of justifying the legal basis for the refusal. That allows the practitioner to better understand the deficiency and whether it can be cured. It also allows the practitioner to explain the result to the client.

In the three examples above, the practitioner phrased the question correctly and LegalNet investigated the case. The first case resulted in the Visa Office revealing more facts about the applicant’s immigration history, which explained the consulate’s correct finding of 212(a)(9)(C) inadmissibility. The second case resulted in the Visa Office’s overturning the consulate’s refusal and their improper requirement that the joint sponsor be a family member. The third case resulted in the Visa Office’s legal interpretation of the fraud ground of inadmissibility and why claiming to be from Mexico in order to qualify for voluntary return cut off a line of inquiry that could have been important.

In addition to the DOS administrative appeal process, visa applicants may also seek judicial review of visa refusal by filing a complaint in U.S. district court. However, judicial review is generally considered a last resort and is only available in certain circumstances where the applicant believes that the refusal violates immigration law or the Constitution.