Review of AILA Practice Pointer on “LegalNet Scope of Review of Nonimmigrant Visa Refusal”
The American Immigration Lawyers Association (AILA) is a nonprofit and national bar association of attorneys who practice and teach immigration law. On January 9, 2019 AILA issued a practice pointer highlighting their request for LegalNet (LegalNet@State.gov) to clarify the extent of their reviews on nonimmigrant visa refusals and to include whether the refusal derives from an error of law or on a factual finding. This request came during a liaison meeting on October 18, 2018 with the Department of State (DOS) Visa Office (VO) . These meetings are established to provide clarity on current visa procedures and policies.
A nonimmigrant visa may be refused under Section 214(b) of the Immigration and Nationality Act, if the intending immigrant is unable to establish eligibility for a visa classification. One example of this would be if an L-1 visa application was refused by a consular officer due to lack of evidence that the applicant had one year or more of qualifying experience with the overseas company. A nonimmigrant visa may also be refused on factual grounds if the applicant lacks evidence that they have no immigrant intent, such as a lack of evidence of residence outside the U.S.
LegalNet Review of Nonimmigrant Visa Refusals Based on an Error of Law
DOS stated that LegalNet will review refusals based on an error of law when underlying facts of the case are definitive. When cases involve both an error of law and one or more questions of fact, LegalNet will conduct a factual analysis to determine the question of law. LegalNet will not review any 214(b) refusal for an application for a B-1 in lieu of H-1B.
LegalNet Review of Nonimmigrant Visa Refusals Based on Factual Finding
LegalNet will not review a 214(b) refusal that is based on “factual determination,” even if the determination was arbitrary. The best action for these cases is to contact the consular post directly and request supervisory review. Or, based on the refusal response, it may be necessary to file a new application.
LegalNet’s lack of responses leaves many to wonder whether their inquiries have been lost or simply ignored. AILA has suggested to DOS that LegalNet responses should state if the issue is a factual matter or error of law. This would help to manage attorney expectations and reduce follow-up inquiries to LegalNet.
LegalNet Review of Department of Homeland Security Findings
DOS confirmed during the October 2018 liaison meeting that you should not look to LegalNet to resolve a dispute with DHS over a finding of inadmissibility or information impacting ineligibility. LegalNet also does not review unfavorable Security Advisory Opinions (SAO). If it is believed that a SAO finding was made in error, the applicant may reapply with new evidence.
For more information on effective LegalNet inquiries, review the AILA Practice Pointer, “Resolving Issues with Cases Pending at Consular Posts.”