In our last article, we stated that there is no right of appeal against the refusal of a DV visa. We said that you could however pursue a remedy against your refusal by other means; either by Request for Reconsideration or Advisory Opinion to the Visa Office (AP). In the last article, we discussed Request for Reconsideration. In this article, we discuss AP to the Visa Office.
What is Advisory Opinion?
The Visa Office at the Department of State has a dedicated email channel, LegalNet@State.gov, available for 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 AP, you may consider these important points:
- AP can be pursued on matters of law only. It cannot be used 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. If your visa was refused on the basis that you did not meet the educational requirement, you must show why the CO made a mistake in law by reaching that conclusion.
- AP 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 Request for Reconsideration. The Visa Office will not respond to such a request.
- Determinations on AP are matters of law. The procedure for filing is strictly specified. You must cite legal authorities you wish to rely on. You are advised to speak to a professional to assess whether your refusal raises a legal question for determination. If it does not, you have no basis to seek AP.
- You may consider sending AP if you have attempted to contact Post at least twice about your DV refusal and Post has refused or failed to respond to your request. You may do this if 30 days have passed since your second inquiry.
- If your AP 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 recommend that Post review your case and contact you. Post will only issue a visa if there are visa numbers available. If there are no visa numbers available, a visa will not be issued despite a favourable determination of your case.
- AP is free. You do not have to pay a fee. However, you may incur some costs should you decide to use 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 decision depends on the complexity of the matter and availability of essential information. You will usually receive a decision within 30 days from the date of the initial notice.
If you do not receive a 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.
AP can be pursued in limited circumstances. Since it involves legal interpretation, it can only be pursued on grounds that the CO made an error of law. You cannot bang your hopes on obtaining a DV visa through AP. Even if favourably considered, a visa will only be issued subject to the availability of visa numbers for your region.