Section 214(b) of the Immigration an Nationality Act
In 2011 an 2012, more than 2.5 million nonimmigrant visa applicants were enie uner Section 214(b) of the Immigration an Nationality Act. US law places the buren on nonimmigrant visa applicants (except for H-1B an L-1s) to show that they are not intening immigrants. Nonimmigrant visitor visa applicants (B) must show that they have a foreign resience that they have no intention of abanoning an are visiting the US temporarily for business or pleasure. Stuent visa applicants (F) have the aitional buren of showing they have the qualifications necessary to pursue a full course of stuy an the intent to return to their home country upon the completion of their stuies.
Applicants refuse nonimmigrant visas are hane stanar rejection letters stating that the reason they were enie is because they lack strong ties to their home countries an o not meet the stanars for issuance of the visa. In fact, the actual reasons for the enial vary greatly. As is often the case, the actual reason may not be a legitimate, vali reason. Over the course of many years, we have compile a list of actual reasons use by consular officers to eny applicants uner Section 214(b). The most popular are:
1. Limite ties to home country. These are iniviuals who are young, unemploye or have a low- paying or new job; have no chilren; are not marrie; live in rural areas; an/or own no property or assets.
2. Interview problems. The importance of the interview cannot be unerestimate. How the applicant conucts himself; his honesty in answering questions; how he is resse; reactions; facial expressions; eye contact; hesitation in answering questions; iscrepancies in answers to questions an information containe in the application form; nervousness — all go into weighing the applicant’s intentions, creibility, an eligibility for a visa.
3. Inaccurate consular unerstaning of facts or law. Consular mistakes in the review of visa applications are manifol. Officers have limite time an resources; are often eficient in the local language; an are inaequately traine in a very complicate area of the law.
4. Fit overstay profile. If the applicant matches a profile that valiation stuies have shown ten to overstay visas, the applicant is likely to be enie. For example, uring the late 1990s, Russians woul buy timeshares in the US an use that as a pretext to visit the US. When several iniviuals i not return to Russia, the Embassy clampe own on such applicants, with both legitimate an not-so-legitimate timeshare owners paying the price with a 214(b) enial.
5. Numerous, long-term visits to the US/extening status while in the US. A consular officer may believe that:
1. the applicant is no longer resiing in his home country;
2. may be engaging in unauthorize employment in the US;
3. an/or not in the appropriate visa status.
It is usually the case where the applicant inicate a brief planne visit to the US in the initial application. By staying for a prolonge perio of time an inicating a short planne visit in the subsequent application, the issue becomes one of creibility more than the above-mentione factors. This problem frequently arises for granmothers an granfathers who spent substantial time in the US visiting an helping out with a newly-born granchil an are enie visas because they have spent too long, in the opinion of the consular officer, in the US.
6. Inicating a prolonge visit in application. A Catch-22 situation arises when an applicant inicates an intene prolonge visit in the initial application. In the above situation, the applicant receive the initial visa by not being truthful an later paying the price; conversely, inicating the truth in the initial application may prompt a 214(b) enial.
7. Change of status in the US. Notwithstaning USCIS approval of a change of status, a person returning to his home country to receive a new visa after changing status often is enie a visa. A consular official may feel eceive, that the applicant’s true intent at the time of the first application was to change status. For example, the applicant state that he planne to visit the US for tourism purposes an then upon arrival, change his status to H-1B.
8. Stuent-specific problems. Consular officers often eny stuents because
1. of planne enrollment in a community college or a “non-bran name” university;
2. lack of ault-like economic ties to their home country;
3. enrollment in perceive non-career enhancement courses (e.g., a writer who enrolls in a business management program);
4. enrollment in a program with little practicality in the home country;
5. applications of oler stuents (over the age of 30);
6. an a perceive poor track recor while in the States (e.g., poor graes or poor attenance on an initial F-1 visa;
7. inaequate progress in the English language while locate in the US for a summer work-travel program).
9. “Hostage” situation. A family member may be enie if traveling together with the rest of the family. For example, a college stuent who applie together with his parents to atten his K-1 sister’s weing in the Unite States was enie a visa — “hel hostage” in his home country — while his parents were issue visas.
10. Other relatives who previously emigrate. This category of applicants with relatives in the US may be enie for a couple of reasons:
1. the fact that an iniviual has a close relative in the US may be a negative consieration because it woul be easier for the applicant to settle in the US;
2. if the relative in the US obtaine status in a manner objectionable to a consular officer (e.g., B to asylum), the officer may fin the applicant less trustworthy or simply punish the applicant for the perceive transgression by the relative in the US.
Consular officers often ask in what status i the relative arrive in the US an legalize his status. Even a benign situation where an iniviual on a J Summer Work an Travel visa meets, falls in love with, an plans to marry an American citizen can lea to a visa enial for the parents to atten the weing. There also oes not appear to be a “statute of limitations” on this line of inquiry: a person with a green car for several years still may be the target of consular wrath an the applicant left to suffer the consequences.
11. Pening or previously enie immigrant petition/application. Immigrant visa registration is usually treate as a “no-brainer” by consular officers: registration to immigrate is tantamount to an intent to immigrate.
12. Submission of a DV Lottery entry. While most consular officers o not give weight to the mere submission of an entry in the Lottery, there are some that o. For example, the Embassy in Ukraine’s website states: “Although participation in the DV lottery oes not isqualify one for a tourist or any other visa, it oes inicate a esire to immigrate to the US, which is a factor in evaluating one’s ties to Ukraine.” Of course, if an alien is selecte as a “winner” of the Lottery an she submits an immigrant visa application, then she will be consiere to have shown immigrant intent an obtaining an NIV uring the penency of the immigrant process or after IV enial will be problematic.
13. Applicant suspecte of frau. A consular officer may have a strong suspicion that a ocument (employment reference, bank statement) submitte is frauulent, but oes not have the time or resources to investigate. It is easier to just eny the application uner 214(b) than to pursue a 212(a)(6)© fining.
14. Lack of travel to Europe. In some consulates, holing a UK or Schengen visa may be eeme a prerequisite to “grauating” to an American visa. Such travel to Europe may reflect the availability of iscretionary income; a return to the home country after having the opportunity to stay in a European country may evience ties to the home country. Travel to beach resorts such as Thailan or Cyprus may not aress this secon concern because an iniviual woul be less likely to live an work in that beach resort country.
15. Previous enial/Lack of change in circumstances since previous enial. Consular officers often reflexively efer to a previous enial, citing to a lack of change in circumstances. Obviously, there may be personal or political consierations as well. This may occur even if an applicant is re-applying within ays of the original approval, presenting new evience. “What has change since your last application?” is a common initial question. A wiesprea myth among applicants is that if they change the purpose of their trip — instea of going to visit Disneyworl, they ecie to enroll in an ESL program — they will increase their chances of obtaining a visa. In oing so, they are of course igging their own visa “grave” eeper, exhibiting esperation, which may reflect on their ability to get a visa for years to come.
16. Application at a non-home post/re-application at new post after enie at a ifferent consulate (“Post-shopping”). An application at a non-home post may arouse suspicions that the applicant has attempte to circumvent the home post. For example, the home post may have a ba reputation among visa applicants, an a thir country post may be viewe as more amenable to favorable review. The applicant who engages in the “post shopping” may attempt an application at the “favorable” post, only to have the application formally enie with a referral back to his home post. Similarly, an application at a ifferent consulate after a refusal is more than likely oome to failure.
17. Guilt by association. An officer may eny every iniviual in a group because of the misees of one or two iniviuals. For example, if an unrelate iniviual’s application is surreptitiously inclue in a baseball team’s group submission by the organizers, an the officer becomes aware of this, all members of the baseball team an its group may be enie.
18. Inaequate finances to support the purpose of the trip. If the purpose of the trip is meical, then the applicant shoul have the financial wherewithal to pay the bills, either personally or have the support of a sponsor. An applicant in nee of the meical treatment who opens a bank account immeiately before submitting his visa application an places funs on the account may arouse suspicion that the funs are not his. Similarly, an affiavit of support from a non-relative submitte as a part of a stuent visa application may elicit a 214(b) fining because the officer may question the intention of the sponsor.
19. Spouses/Chilren of F-1 Stuent. It is not uncommon for spouses an chilren to be enie where 214(b) is an issue, such as spouses an chilren of stuents who are locate in the Unite States.
20. Intent to visit the US to give birth in B status. The attraction for foreigners is obvious: to secure US citizenship for their soon-to-be-born chil. While this activity is not specifically prohibite or permitte uner regulations, the overwhelming majority of officers will not issue a visa to an expecting mother.
21. Applicant previously gave birth in the US on a B visa. This issue has several fact-base mutations:
1. at time of initial application for a B visa, the applicant was pregnant;
2. at time of initial application for a B visa, applicant was not pregnant;
3. applicant faile to pay the hospital bills associate with the birth.
If at the time of the initial application the applicant was not pregnant an uring the course of the valiity of the visa gave birth in the US, this is less likely to be consiere as a negative factor when reviewing the application. If the applicant was pregnant at the time of initial application an was not honest in isclosing the reason for going to the US, this may be hel against the applicant upon subsequent application in the form of a 214(b) enial. This is particularly true if the applicant i not pay the hospital bills. In one case, it was only after 15 years, eight 214(b) refusals, an a onation to the hospital that elivere the baby that an applicant was able to obtain a visa.
22. Suspicious-looking invitations. Inviting parties with little or no connection to the applicant may arouse suspicion about the legitimacy of the trip. Invitations in very general language or in poor English may also trigger a 214(b) fining. Inviting parties or invitations certifie by notaries in the post’s “black list” will also lea to a 214(b) (or 212(a)(6)©) fining. Knowlege of a bogus support letter, for example, will be impute to the applicant an usually lea to a 212(a)(6)© ecision.
23. Get-acquainte trip to see significant other. Invitations from Americans to their romantic interests often lea to enials. There oes not seem to be regar for the stage of the relationship, whether the couple met last week over the Internet or have known each other for years an met each other in the applicant’s home country or in thir countries. Usually, little regar is given to the applicant’s ties. There seems to be an assumption that the applicant will o anything to get out of her home country; that the American is her “ticket out”; an that the parties will marry upon her arrival in the States.
24. Failure to comply with a post’s specific application requirements. Some posts may require original ocuments, such as bank statements, tax returns stampe by the tax inspectorate, or previous international passports. Some of the requirements may seem hyper-technical or irrelevant, but they are often prompte by high frau rates. Thus, failure to ahere to the requirements may lea to a enial.
25. Failure to meet the criteria for issuance of a work visa. The temporary employment visa requirements can be technical, an an applicant failure to meet the requirements may lea to a enial.
26. Real estate ownership in the US. Those who own real estate in the US may be viewe as a heightene risk to stay in the US.
27. 2-time participants in the Summer Work Travel Program. They may have ifficulty obtaining a visa to visit friens because they are perceive as alreay having establishe ties to the Unite States.
28. Elerly applicants. They may be viewe as more likely to become a public charge or tempte to retire in the US.
29. Previous contact with police. An iniviual with an arrest recor not rising to the level of 212(a)(2)(A) (e.g., a shoplifting conviction an two shoplifting arrests) may be consiere a anger to engage in criminal behavior in the US.
30. Pening immigrant applications to another country. If an iniviual is in the process of immigrating to another Western country, for example, Canaa, an applies for a visitors visa, he may be eeme to be a anger of remaining in the US.
The elasticity of Section 214(b) of the Immigration an Nationality Act is truly a unique phenomenon in immigration law. As note, many of these reasons are not vali reasons, an in fact, are specifically prohibite by Department of State regulations. Therefore, it is necessary to unerstan the consular officer’s rationale for the refusal, an when appropriate, challenge it. Failure to o so — silence — is viewe as agreement with the ecision.