The Consul's Reason

The problem

The first American a foreigner meets is usually a consular officer behind glass, and the meeting lasts about two minutes. In that time the officer decides, under Section 214(b) of the Immigration and Nationality Act, whether the applicant has overcome the legal presumption that every visitor intends to immigrate. A refusal under 214(b) comes with a printed slip citing the section and nothing else. The applicant may not appeal it. No court will review it, under a doctrine the courts themselves call consular nonreviewability. The Foreign Affairs Manual asks that "not fewer than 10 percent" of refusals be looked at by a supervisor, when practical. The applicant may apply again, and pay the fee again, and meet the same officer.

Millions of these decisions are made each year, and the State Department does not publish how many, by post, are refused under 214(b), or by which officers, or with what consistency. Studies that have compared refusal rates across posts and officers for similar applicants find variation that no difference in the applicants explains. An engineer approved by the immigration service for a work visa can be refused at the consulate by an officer who need not say why, and has been. A grandmother refused a visit to a grandchild's graduation has no idea what she said wrong, and cannot find out.

This catalog has asked for a reason on the record before a stop (№ 055), a finding before detention (№ 060), a written reason for a sentence outside the range (№ 061), and an explanation for any machine decision that matters (№ 027). The visa refusal is the one decision a federal official makes about a person with no reason, no record and no review, and it is the decision the rest of the world sees most.

The proposal

The Consul's Reason: every visa refusal is accompanied by a written statement of the reason, in plain language, specific to the applicant. Every refusal may be appealed once, within 90 days, to a reviewing officer at a different post or at a central office, who decides on the record and in writing. Refusal rates by post, by visa category and by nationality are published annually. Consular nonreviewability is left to the courts; the appeal is inside the Department.

How it would work

1. The reason. A refusal states, in a paragraph, what the officer found: the applicant's ties to their home country were not established because of a particular fact; a document was missing; an answer was inconsistent with the application. "Section 214(b)" is a citation, not a reason. The reason is given in writing, in English and the language of the interview.

1. The appeal. An applicant may appeal within 90 days, once, with any additional evidence, to a reviewing officer who did not make the decision and is not at the same post. The review is on the written record and the new evidence, and it results in a written decision. The applicant pays no second fee.

1. The record. Every interview produces a short written record of the questions and the answers, as every other adjudication does. The record is what the reviewing officer reviews. An officer who cannot write down why they refused has not decided; they have guessed.

1. The numbers, published. Refusal rates by post, by category and by nationality, and appeal outcomes by post, published every year. A post that refuses 70 percent of applicants a comparable post refuses at 30 will be visible, and so will an officer whose refusals are reversed on appeal at three times the rate of colleagues.

1. Security, untouched. Refusals on security grounds under the sections that cover them remain governed by those sections, with the reasons stated to the extent the law permits, as they already are for the related decisions of the immigration service. The Consul's Reason is about the ordinary refusal, which is nearly all of them.

1. The courts, left alone. The proposal does not ask Congress to abolish consular nonreviewability. It asks for an appeal inside the Department, which the doctrine does not prevent and which the Department has never provided. Whether courts should review consular decisions is a larger question; whether a colleague should is not.

The numbers

The decisions. On the order of ten million nonimmigrant visa applications a year, and a refusal rate that varies from under 10 percent at some posts to over 60 percent at others. The exact count of 214(b) refusals is not published, which item 4 changes.

The cost. A written reason adds minutes to an interview; a written record, the same. The appeal office, handling perhaps a tenth of refusals, needs a few hundred officers, on the order of $100 million a year, against consular fees of several billion.

The reversal rate. Unknown, because there is no appeal. In comparable systems with review, first-instance reversal rates run from 10 to 25 percent, which, if it held, means hundreds of thousands of people a year are refused who should not have been, each of whom went home and told everyone they knew.

The fees. An applicant refused under 214(b) has paid a fee of $185 or more and may pay it again to try again. The proposal ends the second fee for the appeal, which is the least the country can do for a person it declined to explain itself to.

The honest objections

"Consular officers make millions of decisions a year; requiring a reason and a record for each is impossible." Every immigration officer, every administrative law judge and every benefits examiner in the country produces a written reason for millions of decisions a year. The consular interview is short because the Department decided it would be, not because the decision is simple, and a paragraph of reasons is what an officer who has actually decided already has in mind.

"A written reason lets applicants coach the next one and game the system." An applicant who learns that the officer doubted their employment can bring proof of employment, which is not gaming; it is answering. An applicant who learns the real reason was a hunch about their demeanour has learned something about the process the Department would rather not publish, which is the argument for publishing it.

"Fraud is rampant at some posts and officers need discretion to refuse without explaining." Discretion to refuse is retained; what ends is discretion to refuse without saying why. A post with heavy fraud will refuse heavily and say so, and its refusal rate and reasons will be public, which is what protects the officer as much as the applicant.

"An internal appeal will be a rubber stamp." It may be at first, and the published reversal rates by post in item 4 are the check. An appeal office that reverses nothing at a post whose refusal rate is double its neighbours' will be asked why, in public, by Congress and by the Inspector General.

"The rest of the world's visas are no better." Many are worse, and some, including Canada's and the United Kingdom's, provide written reasons and a review. The standard for a country that wants to be followed rather than merely accommodated is not the world's average. It is to explain itself, once, in writing, to the people knocking at its door.

Sources

• Immigration and Nationality Act § 214(b), 8 U.S.C. § 1184(b); U.S. Department of State, Visa Denials, travel.state.gov
• U.S. Department of State, Foreign Affairs Manual, 9 FAM 403.10 on refusals and supervisory review
• U.S. Department of State, Report of the Visa Office, annual, on nonimmigrant visa issuances and refusals by post and category
• Congressional Research Service, Consular Nonreviewability: Legal Overview; Department of State v. Muñoz, 602 U.S. 899 (2024)
• Government of Canada, Immigration, Refugees and Citizenship Canada, on refusal letters and reconsideration; UK Visas and Immigration, administrative review
• Proposals № 003 (The Open Door Compact); № 027 (The Right to a Human Decision); № 046 (The Talent Visa); № 055 (The Warrant Standard); № 057 (The Scholar Fleet); № 061 (The Sentencing Table)