When a Consulate Shuts the Door on a Visa Petition, The Key to Victory is to Request an Advisory Opinion
April 21, 2010
If you are residing abroad and have recently had your immigrant or nonimmigrant visa application denied by a consulate officer, you may request an advisory opinion from the Department of State’s Visa Office Advisory Opinions Division (AOD) and “open the door” to a denied case. With the powerful advisory opinion, a foreign national has the opportunity to obtain the original visa classification sought instead of filing an entirely new case from the start.
When a foreign national files for an immigrant or nonimmigrant visa from a consulate abroad, the consulate officer may erroneously deny the petition taking an incorrect legal position. The foreign national may not feel that s/he has any options for appeal. However, an attorney may request an advisory opinion from the Department of State’s Visa Office Advisory Opinions Division (AOD). If the AOD agrees with the attorney and issues the advisory opinion, the consular officer’s determination will be overturned allowing the foreign national to obtain the visa s/he is seeking. This is a very powerful tool that not many foreign nationals know exists. This article discusses the various advisory opinion procedures and discusses the benefits of requesting the advisory opinion especially when the foreign national’s petition has been incorrectly denied.The Advisory Opinion
A request for an advisory opinion is a appropriate when your immigrant or nonimmigrant visa petition has been denied at a consulate abroad due to an incorrect application of law. The advisory opinion addresses legal questions involving proper visa classification, specific grounds of visa eligibility, and other legal issues concerning visa applicantions. The most common questions pertain to misrepresentation of material facts, nonimmigrant visa classifications (particularly E, H-1B and R), inadmissibility due to commission of crimes involving moral turpitude, diplomatic visas, visa revocation requests, and unlawful presence.
An attorney should seek an advisory opinion if it appears that there was a legal error, i.e., when a visa application is denied without an applicable legal basis. The advisory opinion may result in a favorable decision for the application. The consular officer will generally inform the alien of the suspected substantive reason for denying the visa. This will form the basis for the attorney’s request for advisory opinion as often times the consulate officer may err as a matter of law.Legal Effect of the Advisory Opinion
The Department of State’s regulations provide that advisory opinions concerning interpretations of law “shall be binding upon consular officers.” AOD lawyers state that consular officers never refuse to follow a purely legal opinion. This means that if the consular officer “gets it wrong” as a matter of law, the advisory opinion will cure the defect. More problematic is the situation of applying the law to the facts of a particular case. When the case involves factual interpretations as well as legal matters, the consular officer’s determination on the factual issues is binding. Hence, only incorrect applications of the law may be scrutinized by a request for advisory opinion.
If you are a foreign national whose case has been denied due to an incorrect application of law, you should seek an advisory opinion. You must request an advisory opinion within one year of the date the visa petition was denied. Do not delay since after one year you cannot obtain relief. You may begin by calling the consulate officer who denied the application and request that the decision be overturned due to the error, but this approach is a far stretch given the tendancy of these officers not to overrule themselves. Thus it becomes necessary to ask the AOD to overrule the consulate officer through the issuance of an advisory opinion.Processing Times
Once an attorney makes a request for an advisory opinion with the Visa Office’s AOD, the Visa Office will request a report from the processing post overseas before the request can be answered. Delays are most common at this point since the consulate must give the AOD the entire case file, usually by scanning and emailing the report. But when the Visa Office has all the required documentation to resolve an issue, most requests are answered in less than 30 days. Attorneys must check on the status of the request by contacting the AOD front office at (202) 663-1185.Conclusion
The Law Firm of Shihab & Associates in Columbus, Ohio has attorneys who are experienced in requesting advisory opinions and are in direct contact with the AOD and consulate officers abroad. Often times, a request for advisory opinion is the only remedy left to a foreign national with a denied visa application. The use of the advisory opinion process has the potential for advancing due process and fair treatment in immigration law. Therefore, the impact that an advisory opinion can make is significant not just to the client but to the entire legal system at large. Please call today at (614) 255-4USA if you believe your case has been erroneously denied at a consulate and you wish to move forward in requesting for an advisory opinion.