DV visa refusals are commonly based on three main grounds. Bases on the underlying reasons, your visa could be refused under any of the following:
- INA 212(a)(5)(A)
- INA 212(a)(6)(C)
- INA 221(g)
- What is a refusal under INA 212(a)(5)(A)?
This provision is known as the labor certification requirement. Generally, a person who seeks a visa to the U.S. on the basis of performing certain employment is inadmissible unless they can show appropriate certification from the Department of Labor. This certification requirement does not apply to DV applicants.
The DV applicant must however meet the educational requirement. If they cannot meet this requirement, they must meet the work experience requirement in a qualifying occupation. If the applicant fails to meet either of these two requirement they will be refused under INA 212(a)(5)(A).
You could also be refused under INA 212(a)(5)(A) for reasons other than the education or work requirement. The FAM states that any applicant for a DV visa who fails to establish that they possess the requisite qualifications, including a valid entry for participation in the DV program, is ineligible under INA 212(a)(5)(A)(i).
For example, you could be refused under 212(a)(5)(A) if the CO determines that you failed to make a valid DV entry, or made a mistake in your application, or submitted an incorrect or wrong photo, etc.,. If any of these scenarios occur, you will be deemed to have failed to comply with the DV Rules and therefore ineligible under 212(a)(5)(A).
Can I appeal my refusal under INA 212(a)(5)(A)?
No. You cannot. There is no right of appeal against consular decisions. You may however be eligible for a visa if you provide further evidence to show that you meet the education or work requirement before the end of the fiscal year. You can do this by a Request for Reconsideration. You may also consider submitting an Advisory Opinion to the Visa Office at the Department of State for a determination if you believe the CO made an error of law.
- What is a Refusal under INA 212(a)(6)(C)?
INA 212(a)(6)(C)(i) provides that any person who procures a visa or other benefit by fraud or willfully misrepresenting a material fact is ineligible for a visa. You will be refused if you lied in your application or submitted fake documentation purporting to show that you meet the education or work requirement.
You will also be refused if the CO determines that your dependents (spouse or children) included in your application are not your true dependents and that the relationship was developed solely for the purpose of receiving the visa. You may also be refused under INA 212(a)(6)(C) if the CO determines that the photo on your entry form is not your photo.
If you are refused under INA 212(a)(6)(C) you will be permanently ineligible to receive a visa. You may however be eligible for a waiver.
Can I contest my refusal under INA 212 (a)(6)(C)(i)?
If you believe the CO wrongly refused you a visa under INA 212(a)(6)(C)(i), you may pursue an Advisory Opinion to the Visa Office. The Visa Office adjudicates matters of law only. Factual determinations made by the CO are not subject to Advisory Opinion. You must show why the CO made an error of law with legal argument.
- What is a Refusal under INA 221(g):
This refusal means that your application failed to comply with the requirements of the immigration laws. INA 221(g) is commonly applied in one of two ways:
- If you failed to provide documentation as required by law. For example, if you failed to submit a medical report, or pay visa fee you will be refused under INA 221(g) pending the submission of the document or the payment of the fee.
- If the CO needs to conduct further inquiry or investigation about your case before making a decision, you will be refused under INA 221(g). This is known as Administrative Processing (AP). The CO may refuse you under 221(g) if they wish to conduct security checks, seek an advisory opinion, or investigate the authenticity of a document or the genuineness of a marriage.
Can I contest my refusal under INA 221(g)
A 221(g) refusal can be overcome in two ways. If you return with the document requested by the CO your refusal will be overcome and the CO will continue processing the visa. Likewise, if the CO receives the information for which your case was placed under AP, the CO will overcome the refusal and continue processing the case.
Note that returning with the document requested by the CO does not imply that a visa will be issued. It only allows the CO to reopen the case and adjudicate to its conclusion.
By Emmanuel Opoku Acheampong
Disclaimer: This article only provides general information and guidance on U.S. immigration law. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information. The writer is an immigration law consultant and a practicing law attorney in Ghana. He advises on Ghana, U.S., UK, and Schengen immigration law. He is the Managing Partner for Acheampong & Associates Ltd, an immigration law firm in Accra. He may be contacted at [email protected] acheampongassociates .com or www.acheampongassociates.com .
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