My DV Visa has been refused; can I appeal? (II)

Introduction

In our last article, we stated that there is no right of appeal against the refusal of a DV visa. We stated that you could however pursue a remedy against your refusal by other means; either by a Request for Reconsideration or through an Advisory Opinion to the Visa Office. In the last article, we discussed Request for Reconsideration. In this article, we will discuss an Advisory Opinion to the Visa Office.

What is an Advisory Opinion?

The Visa Office at the Department of State has a dedicated email channel, LegalNet@State.gov, available only for case-specific questions on the interpretation or application of immigration law. The LegalNet staff works with posts and other divisions in the Visa Office to prepare responses to appropriate inquiries that involve legal issues. If your DV visa is refused, you or your authorised representative may pose a legal question for determination on your refusal to LegalNet@State.gov.

What does Advisory Opinion involve?

To consider requesting an Advisory Opinion, you may consider these important points:

Advisory opinion can be pursued on matters of law only. It cannot be used as an avenue to challenge factual determinations by the CO. To succeed you must show that you received a final decision on your DV case which you believe to be wrong as a matter of law. For example, if your visa was refused on the basis that you did not meet the educational requirement, you may submit legal argument to show that the CO made a mistake in law by reaching that conclusion.

Advisory Opinion is not an avenue to submit further evidence to overcome your refusal. If your basis for disputing the decision is solely on the basis of new evidence, you may rather consider making a Request for Reconsideration. The Visa Office will not respond to such a request.

Determinations on Advisory Opinion are strictly on matters of law. The procedure for filing your legal question must conform to specific procedures. You must cite all legal authorities upon which you wish to rely.

You may therefore wish to speak to a professional conversant with this procedure to advice you on whether or not you have sufficient basis in law to pursue this remedy.

You may consider sending a legal inquiry if you have attempted to contact the consulate at least twice about your DV refusal and the consulate has refused or failed to respond to your request. You may do this if 30 days have passed since your second inquiry.

If your inquiry is favourably considered, you may be issued a visa only when visa numbers are available for your region. If the Visa Office makes a positive determination on your case, they may not compel the Post to issue you a visa. They may only recommend that the Post review your case and contact you. The Post will only issue you a visa if there are visa numbers available. If there are no visa numbers available, you cannot be issued a visa despite a favourable determination of your case.

Finally, a request for Advisory Opinion is free. You do not have to pay any fee for seeking an opinion. However, you may incur some fee should you decide to use the services of a professional.

How long will it take for me to receive a decision?

If you send a request, you will typically receive a notice that the inquiry has been received and is being processed. The time frame for receiving a final decision depends on the complexity of the matter and availability of essential information. You will usually receive a final decision within 30 days of the initial notice that the inquiry is being processed.

If you do not receive a final decision within 30 days of the initial notice, you or your designated representative may submit a follow-up email along with copies of any earlier correspondence.

Conclusion

An advisory opinion can be pursued in very limited circumstances. Since it involves legal interpretation, it may be pursued on grounds that the CO made an error of law. It is not advisable to bang your hopes on obtaining a DV visa. Even if you inquiry is favourably considered, you can only be issued a visa if visa numbers are available for your region.