Visa Denials
By: Allen E. Kaye
Liza was excited. In three days her friend Timothy would
come visit her in the United States. Suddenly, the phone rang.
Liza couldnt believe her ears! Sadly, Timothy told her, "I
cannot come...the consul said I am 214(b)."
On any given day throughout the world some visa applicants
find themselves in Timothy's situation. They hear the consular
officer say, "Your visa application is refused. You are not
qualified under Section 214(b) of the Immigration and Nationality
Act." To be refused a visa when you are not expecting it causes
great disappointment and sometimes embarrassment. Here is
what a 214(b) visa refusal means and what applicants and friends
can do to prepare for a visa reapplication.
WHY IS THERE A VISA REQUIREMENT?
The United States is an open society. Unlike many other
countries, the United States does not impose internal controls
on most visitors, such as registration with local authorities.
In order to enjoy the privilege of unencumbered travel in
the United States, aliens have a responsibility to prove they
are going to return abroad before a visitor or student visa
is issued. Our immigration law requires consular officers
to view every visa applicant as an intending immigrant until
the applicant proves otherwise.
WHAT IS SECTION 214(b)?
Section 214(b) is part of the Immigration and Nationality
Act (INA). It states:
Every alien shall be presumed to be an immigrant until
he establishes to the satisfaction of the consular officer,
at the time of application for admission, that he is entitled
to a nonimmigrant status...
To qualify for a visitor or student visa, an applicant must
meet the requirements of sections 101(a)(15)(B) or (F) of
the INA respectively. Failure to do so will result in a refusal
of a visa under INA 214(b). The most frequent basis for such
a refusal concerns the requirement that the prospective visitor
or student possess a residence abroad he/she has no intention
of abandoning. Applicants prove the existence of such residence
by demonstrating that they have ties abroad that would compel
them to leave the U.S. at the end of the temporary stay. The
law places this burden of proof on the applicant.
Our consular officers have a difficult job. They must decide
in a very short time if someone is qualified to receive a
temporary visa. Most cases are decided after a brief interview
and review of whatever evidence of ties an applicant presents.
WHAT CONSTITUTES "STRONG TIES"?
Strong ties differ from country to country, city to city,
individual to individual. Some examples of ties can be a job,
a house, a family, a bank account. "Ties" are the various
aspects of your life that bind you to your country of residence:
your possessions, employment, social and family relationships.
As a U.S. citizen or legal permanent resident, imagine your
own ties in the United States. Would a consular office of
a foreign country consider that you have a residence in the
United States that you do not intend to abandon? It is likely
that the answer would be "yes" if you have a job, a family,
if you own or rent a house or apartment, or if you have other
commitments that would require you to return to the United
States at the conclusion of a visit abroad. Each person's
situation is different.
Our consular officers are aware of this diversity. During
the visa interview they look at each application individually
and consider professional, social, cultural and other factors.
In cases of younger applicants who may not have had an opportunity
to form many ties, consular officers may look at the applicants
specific intentions, family situations, and long-range plans
and prospects within his or her country of residence. Each
case is examined individually and is accorded every consideration
under the law.
IS A DENIAL UNDER SECTION 214(B) PERMANENT?
No. The consular officer will reconsider a case if an applicant
can show further convincing evidence of ties outside the United
States. Your friend, relative or student should contact the
embassy or consulate to find out about reapplication procedures.
Unfortunately, some applicants will not qualify for a nonimmigrant
visa, regardless of how many times they reapply, until their
personal, professional, and financial circumstances change
considerably.
HOW CAN I HELP?
You may provide a letter of invitation or support. However,
this cannot guarantee visa issuance to a foreign national
friend, relative or student. Visa applicants must qualify
for the visa according to their own circumstances, not on
the basis of an American sponsor's assurance.
WHAT CAN YOU DO IF AN AQUAINTANCE IS REFUSED
A VISA UNDER 214(B) FOR LACK OF A RESIDENCE ABROAD?
First encourage your relative, friend or student to review
carefully their situation and evaluate realistically their
ties. You can suggest that they write down on paper what qualifying
ties they think they have which may not have been evaluated
at the time of their interview with the consular officer.
Also, if they have been refused, they should review what documents
were submitted for the consul to consider. Applicants refused
visas under section 214(b) may reapply for a visa. When they
do, they will have to show further evidence of their ties
or how their circumstances have changed since the time of
the original application. It may help to answer the following
questions before reapplying: (1) Did I explain my situation
accurately? (2) Did the consular officer overlook something?
(3) Is there any additional information I can present to establish
my residence and strong ties abroad?
Your acquaintances should also bear in mind that they will
be charged a nonrefundable application fee each time they
apply for a visa, regardless of whether a visa is issued.
WHO CAN INFLUENCE THE CONSULAR OFFICER TO
REVERSE A DECISION?
Immigration law delegates the responsibility for issuance
or refusal of visas to consular officers overseas. They have
the final say on all visa cases. By regulation the U.S. Department
of State has authority to review consular decisions, but this
authority is limited to the interpretation of law, as contrasted
to determinations of facts. The question at issue in such
denials, whether an applicant possesses the required residence
abroad, is a factual one. Therefore, it falls exclusively
within the authority of consular officers at our Foreign Service
posts to resolve. An applicant can influence the post to change
a prior visa denial only through the presentation of new convincing
evidence of strong ties.
The phone rang. "Liza, its Timothy. I went back to the
Embassy for another interview! I showed the consul more information
about my job and family. This time I got my visa!" Liza was
overjoyed. "Great!" she exclaimed, I'll see you next week!"
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