221(g), a Consular Wall, and Unavailable Documents

Posted on July 1, 2019

You have been denied under Section 221(g) of the Immigration and Nationality Act and despaired because the consular officer demanded a document that is unavailable or unobtainable. Although rare, this does happen — perhaps a birth certificate was lost and the archives in a city burned down in a fire, or the birth certificate lists the wrong information. This is what happened to a recent client — whose son was stranded outside the United States for more than two years while he attempted to resolve consular demands to have a local court amend the birth certificate of his son to reflect him as the father.

There is hope in such situations. US immigration law anticipates such problems. If a visa applicant can show that there is “actual hardship” in trying to procure the document, not just “normal delay and inconvenience”, then the consular officer is empowered to waive the document requirement and allow for substitute evidence. Although this authority is to be “sparingly used”, the consular officer must act reasonably — he or she cannot suspend processing interminably for an applicant who in good faith attempts to meet the documentation requirements.

This is what happened to “Joe”: upon USCIS request, he and his son submitted DNA results to reflect that he was the biological father, as well as evidence of their father-son relationship dating back more than 20 years. The DNA testing was conducted by an accredited laboratory, with the son visiting the US Embassy to submit a DNA sample. So when USCIS approved the petition, Joe thought that his son would not have a problem at the visa stage of the process. Boy, was he wrong.

Notwithstanding his personal attendance at the immigrant interview, the consular officer demanded that his birth certificate be amended to show that Joe was his biological father. Joe was not too nonplussed by the demand — he thought that he would be able to get it done quickly. But two years and thousands of dollars later — after the hiring of lawyers, dealing with courts and bureaucracy and his ex-fiancee — he was still not able to obtain a revised birth certificate. At that point, he contacted our firm.

We were able to gather additional evidence of his relationship with his son and document his attempts to amend the birth certificate, and bring this to the attention of a consular supervisor. After another interview, the son was promptly approved and the visa was issued.

Every case is different, of course. But if you too feel you have run up against a consular wall, or that a consular officer is being unreasonable in requiring a certain document, feel free to contact us.

Tags: 221(g), Consular Officers, Department of State, DNA Test, Unobtainable Document