My DV Visa Has Been Refused. Can I Appeal? (Part 1)

Introduction
There is no right of appeal against a refusal of a U.S. visa, including a DV visa. A legal doctrine prevents U.S. courts from determining whether or not the decision to refuse a visa was in accordance with law. You may however pursue a remedy against your refusal by other means.

In this post, we will consider two ways by which you may pursue the refusal of your DV visa. These are:

• Request for Reconsideration
• Advisory Opinion from the Visa Office

What is a Request for Reconsideration?
As the name simply implies, you request the relevant authority to take a second look at your refusal. If your DV visa is refused, you have one year from the date of refusal to provide further evidence to overcome the refusal. If your evidence tends to overcome your ground of ineligibility, the CO may overcome the refusal and issue the visa. Provided you are entitled to visa status, reconsideration may be given to your case at any time.

Who considers a request for reconsideration?

Reconsideration is determined by the Post that refused your visa. Your request will normally be considered by a different CO. In some Posts, there is usually an officer who considers only prior refusals. If the CO determines that your evidence tends to overcome the refusal, they will reopen the case and adjudicate the case to its conclusion.

Can I also send my request to KCC?
KCC has no adjudicatory role in visa matters and has no jurisdiction to receive and determine matters relating to visas. It is only the CO who has authority to consider a request for reconsideration. Do not send your request to the KCC. If you do, your documents will be destroyed and you will have wasted precious time waiting for a response that will never come.

How should I make my request?
Your request must be professionally prepared. You may pursue reconsideration only when you have further evidence to overcome your refusal. You must argue why the further evidence tends to overcome the refusal. You must state new facts and support them by affidavits or other documentary evidence. If you resubmit previously provided evidence or assert a fact without providing documentation in support, your request will fail.

When can I make a request?
Federal Regulations state that you may bring evidence to overcome your refusal within one year from the date of the refusal. For DV visas, you may bring the evidence before the end of the fiscal year in which you were selected. For example, if you were refused a visa on 1st August 2017 of the fiscal year ending September 2017, you will have barely two months within which to pursue reconsideration.

How long will it take for my request to be considered?

There is no specific period within which a decision must be taken on your request. The workload of the Post may affect the consideration of your request. Busy posts attend to a high number of applicants in a day. The already overburdened consular staff may therefore consider your request an additional workload. They might therefore not give it the needed attention and consideration.

What if I do not receive a decision on my reconsideration?

If you do not receive a response to your initial request, you may consider sending a follow-up request. If you still do not receive a response after 30 days of sending the follow-up, you may consider sending a request for advisory opinion which will be discussed in our next post.

Will I be issued a visa if my reconsideration is approved?

There is no guarantee that your visa will be issued. The CO will only overcome the initial refusal, reopen the case and adjudicate the visa. Reopening the case means that the CO will consider case as a whole and take account of factors that were not a part of your initial refusal.

Again, even if the CO determines that your reconsideration has merit, they will only overcome your refusal if there is availability of visa numbers for your region. The CO will not issue a visa if there are no available visa numbers.

How much do I need to pay for my request?
A request for reconsideration is free. You do not have to pay additional fee in addition to the fee you already paid. If your visa is granted, you will pay no additional fee. You may however incur some costs if you decide to use the services of a professional.

Conclusion
Given that a visa can be granted on the basis of reconsideration only when visa numbers are available, you cannot bang your hopes on obtaining a visa through reconsideration. Even if your new evidence tends to overcome your refusal, you may not receive a decision before the end of the fiscal year.

In our next post, we will consider Advisory Opinion as an alternative means by which you may pursue a refusal of your DV visa.

By Emmanuel Opoku Acheampong
Disclaimer: This article only provides general information and guidance on the US visas. 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 a Managing Partner for Acheampong & Associates Ltd, an immigration law firm in Accra. He may be contacted at info@ acheampongassociates .com or www.acheampongassociates.com .