Consular Review Bill Introduced Again
Posted Apr 20, 1999

A Bill to establish a Board of Visa Appeals to review decisions of Consular Officers on visa matters, has again been introduced in the House of Representatives. This Bill, a favorite of immigration attorneys, including at the Law Office of Sheela Murthy, has been proposed repeatedly over the years by Congressman Frank of Massachusetts. Every time, of course, the Bill meets strong opposition from the Department of State.

While most of us respect the difficult job that Consular Officers are called upon to do, it does not seem fair in a country which subscribes to the rule of law that there is no appeal from the decision of a Consular Officer. The Immigration and Naturalization Service, the Immigration Court, and the Department of Labor all have appeals boards. Even in agencies such as the Internal Revenue Service, efforts are being made to increase accountability and fairness in decision making. While it is true that not every decision of these agencies is necessarily appealable, the fact remains that no decision of a Consular Officer is appealable today, though the State Department Visa Office does issue legal advisory opinions in cases where a Consular Officer has misapplied the law or issued a decision which is contrary to law. The Law Office of Sheela Murthy has on numerous occasions contacted the State Department Visa Office in Washington D.C. and succeeded in obtaining legal advisory opinions issued to Consular Officers in various parts of the world in order to remedy a misapplication of the law by a Consular Officer.

For its part, the Department of State may argue that they have a national security function, and that if they are not allowed to use their gut feelings to make decisions, then a dangerous person may be issued a visa. Such decisions are not necessarily obvious, even to an experienced Consular Officer. It only seems fair and reasonable to have a mechanism for review which could have a deterrent effect to make it less likely that a denial will be based upon improper grounds.

The Law Office of Sheela Murthy is often contacted by immigration law attorneys from around the country on questions or complications with respect to consular matters. For example, last week, an H1B visa applicant was advised that his educational credentials were being verified and had been submitted to the Anti-Fraud Unit since the applicant had completed both a Bachelor's and Master's degree in Computer Science or Computer Applications from Bangalore University in India. It appeared that there were no other reasons for the delay in issuing the H1B visa. Yet the applicant also had completed a Master of Science Degree from a reputable University in the U.S. in a closely related field, so he clearly had the appropriate qualifications. The non-issuance of the H1B visa in this case is causing several months of unnecessary hardship and delay to the H1B visa applicant and the U.S. employer. Such a request of the Consular Officer appears to border on being arbitrary and capricious and it would seem to serve justice well to have an Appeal Officer overrule the decision and require prompt issuance of the H1B visa. The U.S. Department of State should consider providing an appeals board for such cases.