When a consular officer “refuses” to issue a visa, he or she may do so under a section of law referred to as “§221(g).” This can occur when the consular officer believes from the statements made by the applicant or in the documents submitted with the application that the person is ineligible for a visa. Often, before finally adjudicating the visa application, the officer will request additional evidence or documents from the applicant or evidence the posting of a bond at a port of entry, and then will approve the visa. If the visa application is abandoned at this stage, it would be considered a refusal. A refusal also can occur when an applicant submits an application but requests the return of his or her passport before the visa can be issued. This past summer’s “visa freeze” left many travelers unable to obtain visas to enter the U.S. in time for scheduled events or activities. As result, such travelers who submitted their applications prior to the freeze but requested their passports before the visa could be issued were technically “refused” a visa under §221(g). Such a refusal must be disclosed on future visa applications. Yet, many foreign nationals may not know that they must disclose this type of “refusal” and may not have disclosed on further visa applications. What are the consequences if a foreign national applies for a visa in the future and fails to disclose a visa refused?
In recent guidance, the State Department advises that consular officials make case notes to indicate why a visa application has been refused under §221(g) and assures that during the summer system outage, consular officers indicated any systems-related refusals. More importantly, DOS advises that the failure to disclose a §221(g) refusal resulting from the visa freeze on subsequent visa applications will not, on its own, lead to a finding of misrepresentation. Indeed, DOS reiterates its guidelines to its consular officers: an NIV applicant’s misrepresenting the fact that the applicant was previously refused an NIV is not, in itself, a material misrepresentation, even though the consular officer may feel that knowledge of the previous visa refusal might have been useful. In the absence of anything to the contrary, the officer should assume that the previous refusal was predicated on the previous interviewing officers finding that the foreign national was not a qualified nonimmigrant at the time of that interview. Such an opinion is limited to the circumstances of the prior application at that time. Since circumstances change, eligibility must be decided in light of the current situation in each application. Consequently, a misrepresentation that conceals only the fact of a previous refusal is not material. However, DOS cautions, where the misrepresentation conceals not only the fact of the previous refusal, but also objective information not otherwise known or available, there may be a basis for finding that the absence of such facts tended to cut off a line of inquiry and thus rendered the misrepresentation material.