Visa Lawsuits: Challenging Visa Decisions in U.S. Courts

Posted on February 27, 2025

For visa problems one should always try to resolve the issue with the embassy, consulate or State Department first. Visa applicants do indeed have rights. But once those rights or your patience have been exhausted, one may consider the possibility of a lawsuit.

The problem is that as a general rule, visa denials are not subject to judicial review under the doctrine of consular nonreviewability. This was recently reaffirmed by the Supreme Court in Muñoz v. Department of State. The onslaught of anti-immigrant actions and rhetoric by the Trump Administration can also be intimidating to visa applicants. But there are exceptions to the rule barring judicial review of visa cases and visa denials. Sometimes the mere filing of the lawsuit can impact the case. While this area of the law is fluid and unpredictable, courts have recognized some exceptions, including:

1. The most prominent one relates to a mandamus lawsuit and Section 221(g) administrative processing denials. We were one of the first law firms to obtain a court decision ordering an embassy to make a decision on a visa application after a 221(g) refusal. Courts continue to recognize this 221(g) delay exception. Nevertheless, the Government usually challenges these lawsuits on two fronts, arguing that the: a) 221(g) administrative processing decision is a final one and thus not subject to judicial review; and b) delay – even if it has been years – is “reasonable,” and thus not appropriate for a court to intervene. Notwithstanding the Government’s typical position, occasionally, after the filing of such a lawsuit, the Assistant US Attorney assigned to defend the lawsuit can get a 221(g) visa case “unstuck.” This happened recently in a visa case we handled which had been pending several years because of an ill-motivated and false poison-pen letter from his ex-wife’s family. Within months of filing the lawsuit, the client received his visa.
2. If the consul fails in his duty to review a denied immigrant visa applicant’s request for reconsideration, a court may intervene. Similar to an appeal, every denied immigrant visa applicant has the absolute right to request reconsideration of the visa decision by presenting evidence and/or legal arguments why the consul’s decision is wrong. This right is set out in the Department of State’s regulations: the consul is required to review that evidence and arguments.
3. State Department and consular policy interpretations and rules and regulations can also be challenged in court. While this is rare, it is possible to request a court to intercede when a State Department rule or regulation negatively impacts a group of applicants. We did this many years ago when the US Embassy in Moscow was denying DV Lottery winners for perceived signature defects. We filed a class action lawsuit (“Lotterygate”) against the Embassy in Washington, D.C., and within months, the Embassy stopped denying applicants on these grounds. Also of importance: typically, courts will defer to the State Department’s interpretation, but the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo reversing longstanding precedent requiring courts to defer to agency interpretations may open the doors for more and more such successful challenges.
4. It is not always the consul making the visa decision but an agency within DHS (USCIS, CBP, ICE), and so a few courts have found that the doctrine of consular nonreviewability does not apply to such decisions. The consul will indicate that it was DHS that made the decision, and that recourse lies with DHS. One may try to resolve the issue directly with the agency that made the decision or via the DHS Travel Redress Inquiry Program (TRIP), but failing that, one can file a lawsuit.
5. When a US citizen’s constitutional rights are implicated, a court may examine the basis for the visa denial to ensure that the reason was legitimate and bona fide. This can come up, for example, when a foreign scholar has been invited to the US to give a speech and her visa has been denied. The inviting US party may have a 1st Amendment right in the scholar’s visit to the United States and a court may review the basis for the denial.

Every case is different, as are the options and possible solutions. If you would like to discuss your case, please feel free to contact us.