I will start by saying that I am an American citizen by birth. I live and work in Colombia. I have lived with my wife for a year and a half and we have been married for over 9 months. We want to visit my family in the US during my Summer vacation period, but she was rejected for a B2 tourist visa.
My question is, how do I get my case reviewed? The FAM manual says all refusals must be reviewed by a supervisor the very same day, but then it goes on to state that they can do a sample of 20% at places with a heavy workload such as in India and in Bogota.
By the way, the rejection rate for tourist visas in Bogota is 95% since most Colombians overstay their visa. They then punish Colombians who will return by not giving out the visa when it is entirely their fault for giving out visas to people who don't deserve them in the first place.
Here are other notes from the FAM manual:
This is from FAM Section 9 41.121 Found here: state.gov/m/a/dir/regs/fam/09fam/index.htm
"When a consular officer knows or has reason to believe a visa
applicant is ineligible and refuses the issuance of a visa, he or she
must inform the alien of the ground(s) of ineligibility.... The officer shall note the reason for the
refusal on the application. Upon refusing the nonimmigrant visa,
the consular officer shall retain the original of each document upon
which the refusal was based, as well as each document indicating a
possible ground of ineligibility, and should return all other
supporting documents supplied by the applicant. "
None of my wife's documents were retained. She was not told the reason for her refusal even though she asked.
"You must inform all visa applicants orally of both the section of law under
which the visa was refused and the factual basis for the refusal"
She was not informed orally. She was given a generic sheet a paper. She asked orally but was told everything is on the paper.
"You must return to the applicant all documents not pertinent to the
refusal or indicative of possible ineligibility. Letters and other documents
addressed to an officer or the post should be retained and either filed or destroyed."
Nothing was kept even though several letters were addressed to the consulate.
"In any NIV case involving a refusal under any provision of the law, the
post must also provide the applicant and any attorney of record with a
completed page 1 of Form OF-194, The Foreign Service of the United
States of America Refusal Worksheet (see 9 FAM 41.121 Exhibit III),
setting forth the ground(s) of refusal."
This was not given.
"A written notification must be given in the case of an NIV refusal based on
Sections 214(b) or 221(g) of the INA."
She was given something like this, but it was not addressed to her as shown in the samples in the FAM manual.
"Consular supervisors must review as many nonimmigrant visa (NIV)
refusals as is practical but not fewer than 20% of such refusals. Such a
review is a significant management and instructional tool useful in
maintaining the highest professional standards of adjudication. It
ensures uniform and correct application of the law and regulations."
This is what I want done in her case. She showed that she has money in the bank, $8000 USD alone in hers for the trip, that she has ties to here through my work contract and hers and especially because she has to return in August to finish her University. She has completed 5 years, but has to take a few exams and complete her thesis.
"The need for clear language is essential; however, explanations of why a
visa could not be issued need not be lengthy. You should provide the
precise legal citation relied upon and explain the law and the refusal
politely and in clear layman's terms. Use of jargon or terms not familiar
to the average person can create confusion, frustration and, often,
additional work in the form of congressional and public inquiries. An
example: In a case involving a refusal under INA 214(b), it is essential
that you tell the applicant that the reason for the refusal is that he or she
has not persuaded you that he or she will return to his or her country.
Fitting a certain demographic profile ("young", "single", etc.) is not
grounds for a visa refusal. In a 214(b) refusal, the denial must always be
based on a finding that the applicant’s specific circumstances failed to
overcome the intending immigrant presumption."
Anyone who has been told too young, too single, too whatever has a basis for appeal. They are not allowed to reject visas in that way.
"INA 291 places the burden of proof upon the applicant to establish eligibility
to receive a visa. However, the applicant is entitled to have full
consideration given to any evidence presented to overcome a presumption
or finding of ineligibility. It is the policy of the U.S. Government to give the
applicant every reasonable opportunity to establish eligibility to receive a
visa. This policy is the basis for the review of refusals at consular offices
and by the Department. It is in keeping with the spirit of American justice
and fairness."
My wife was not given the opportunity to show all of her documentation before she was refused.
I am sorry for this lengthy post. I have been trying to get help and wanted to know if there is anything that can be done before I contact my US Senators to work on my case. Since I can show that the law has not been followed, I believe I have cause for a review. I hope others may find this information useful as well.
My question is, how do I get my case reviewed? The FAM manual says all refusals must be reviewed by a supervisor the very same day, but then it goes on to state that they can do a sample of 20% at places with a heavy workload such as in India and in Bogota.
By the way, the rejection rate for tourist visas in Bogota is 95% since most Colombians overstay their visa. They then punish Colombians who will return by not giving out the visa when it is entirely their fault for giving out visas to people who don't deserve them in the first place.
Here are other notes from the FAM manual:
This is from FAM Section 9 41.121 Found here: state.gov/m/a/dir/regs/fam/09fam/index.htm
"When a consular officer knows or has reason to believe a visa
applicant is ineligible and refuses the issuance of a visa, he or she
must inform the alien of the ground(s) of ineligibility.... The officer shall note the reason for the
refusal on the application. Upon refusing the nonimmigrant visa,
the consular officer shall retain the original of each document upon
which the refusal was based, as well as each document indicating a
possible ground of ineligibility, and should return all other
supporting documents supplied by the applicant. "
None of my wife's documents were retained. She was not told the reason for her refusal even though she asked.
"You must inform all visa applicants orally of both the section of law under
which the visa was refused and the factual basis for the refusal"
She was not informed orally. She was given a generic sheet a paper. She asked orally but was told everything is on the paper.
"You must return to the applicant all documents not pertinent to the
refusal or indicative of possible ineligibility. Letters and other documents
addressed to an officer or the post should be retained and either filed or destroyed."
Nothing was kept even though several letters were addressed to the consulate.
"In any NIV case involving a refusal under any provision of the law, the
post must also provide the applicant and any attorney of record with a
completed page 1 of Form OF-194, The Foreign Service of the United
States of America Refusal Worksheet (see 9 FAM 41.121 Exhibit III),
setting forth the ground(s) of refusal."
This was not given.
"A written notification must be given in the case of an NIV refusal based on
Sections 214(b) or 221(g) of the INA."
She was given something like this, but it was not addressed to her as shown in the samples in the FAM manual.
"Consular supervisors must review as many nonimmigrant visa (NIV)
refusals as is practical but not fewer than 20% of such refusals. Such a
review is a significant management and instructional tool useful in
maintaining the highest professional standards of adjudication. It
ensures uniform and correct application of the law and regulations."
This is what I want done in her case. She showed that she has money in the bank, $8000 USD alone in hers for the trip, that she has ties to here through my work contract and hers and especially because she has to return in August to finish her University. She has completed 5 years, but has to take a few exams and complete her thesis.
"The need for clear language is essential; however, explanations of why a
visa could not be issued need not be lengthy. You should provide the
precise legal citation relied upon and explain the law and the refusal
politely and in clear layman's terms. Use of jargon or terms not familiar
to the average person can create confusion, frustration and, often,
additional work in the form of congressional and public inquiries. An
example: In a case involving a refusal under INA 214(b), it is essential
that you tell the applicant that the reason for the refusal is that he or she
has not persuaded you that he or she will return to his or her country.
Fitting a certain demographic profile ("young", "single", etc.) is not
grounds for a visa refusal. In a 214(b) refusal, the denial must always be
based on a finding that the applicant’s specific circumstances failed to
overcome the intending immigrant presumption."
Anyone who has been told too young, too single, too whatever has a basis for appeal. They are not allowed to reject visas in that way.
"INA 291 places the burden of proof upon the applicant to establish eligibility
to receive a visa. However, the applicant is entitled to have full
consideration given to any evidence presented to overcome a presumption
or finding of ineligibility. It is the policy of the U.S. Government to give the
applicant every reasonable opportunity to establish eligibility to receive a
visa. This policy is the basis for the review of refusals at consular offices
and by the Department. It is in keeping with the spirit of American justice
and fairness."
My wife was not given the opportunity to show all of her documentation before she was refused.
I am sorry for this lengthy post. I have been trying to get help and wanted to know if there is anything that can be done before I contact my US Senators to work on my case. Since I can show that the law has not been followed, I believe I have cause for a review. I hope others may find this information useful as well.
