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How do I avoid a Visa Denial?
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On any given day throughout the world many visa applicants find themselves in a dire situation- they hear a U.S. consular officer say, “Your visa application to go to the U.S. is refused. You are not qualified under Section 214(b) of the Immigration and Nationality Act.” To be refused a U.S. visa when you are not expecting it causes great disappointment and sometimes embarrassment. What does a § 214(b) visa refusal mean? And what can applicants do to prepare for a visa reapplication or avoid a refusal in the first place?

Key Points

1. § 214(b) denials are among the  most common form of U.S. visa denials.


2. A § 214(b) denial is not fatal but can be avoided or overcome.

3. Bringing the right forms of evidence to the interview can be the key to succeeding at a visa interview.

What is § 214(b)?

Section 214 of the Immigration and Nationality Act (INA) controls the admission of nonimmigrants to the United States. Subsection (b) of Section 214 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 a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status…

The presumption of “immigrant intent” can be likened to “you are guilty until proven innocent.”  Since the consular officer presumes you have immigrant intent, to qualify for a variety of U.S. visa classifications, including visitor, student visa, exchange visitor and investor visas, applicants must be able to prove that they do not have ‘immigrant intent,’i.e., that they will leave the U.S. at the end of their authorized stay and return to their home country because they do not have the present intention to remain in the U.S. permanently. Failure to show that you do not have immigrant intent will result in a refusal of a visa under Section 214(b).

TIP
Being simply employed may not be sufficient. You may need to show that the employment is stable, you earn good wages and/or you have good benefits.

The most frequent basis for a Section 214(b) refusal concerns the requirement that the applicant possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such ‘residence’ by demonstrating that they have strong 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.

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 only a brief interview and quick review of whatever evidence the applicant presents.

What constitutes ‘Strong Ties’?

‘Ties’ are the various aspects of your life that bind you to your country of residence: your possessions, employment, social and family relationships. Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a stable job or profession, a house, a family, bank accounts and/or other significant personal property.

Each person’s situation is different and 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 applicant’s 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.

TIP
If an Immigrant Petition (family or employment based) has been filed on your behalf, it will be very difficult to overcome the presumption of immigrant intent, even if you won’t be getting the green card for many years because of retrogression.

  
Is a denial under Section 214(b) Permanent?

No, the consular officer will reconsider a re-application if the applicant can show additional convincing evidence of ties to a residence outside the U.S. and demonstrate how their circumstances have changed since the time of the original application.  The applicant should contact the embassy or consulate to find out about any specific reapplication procedures as this may differ across consulates and embassies. 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.

What can be done if a visa is denied under Section 214(b) for lack of residence abroad?

Since the applicant must show that circumstances have change and/or they have further compelling evidence to show strong ties on reapplication, it may help to answer the following questions before reapplying:

  • Did I explain my situation accurately? 
  • Did the consular officer overlook something? 
  • Is there any additional information I can present to establish my residence and strong ties abroad?

Applicants should also carefully review their situation and realistically evaluate their ties– what will make them want to come back. Then they can write down 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 consular officer to consider and note if the consular officer made any comments about the submitted documents or if he or she suggested any other documents.

Applicants should also bear in mind that they will be charged the nonrefundable application fee each time they apply for a visa, regardless of whether a visa is issued.

CASE SCENARIO

Liza was excited because her friend Timothy, a national of Turkey, was coming to visit her in the U.S. Suddenly, the phone rang. Liza couldn’t believe her ears! Sadly, Timothy told her, "I cannot come...the consul said I am 214(b)." When Timothy went to the interview, all he took with him were his passport, round-trip airline tickets and an invitation letter from Liza.

Timothy can reapply for tourist visa.  This time, however, Timothy must bring with him more evidence that shows that he has strong ties to his home country. When Timothy returned to the consulate, he brought with him proof that he owned a home in Turkey, was working in a stable company with good benefits and that he had a large and close-knit extended family.  He also showed that he had few relatives in the U.S.   This time, Timothy’s visitor visa application was approved.

















Who can influence the consular office to reverse a decision?

U.S. 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 most denials concerning whether an applicant possesses the required residence abroad is a factual one. Therefore, it falls exclusively within the authority of consular officers at the 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.

If, however, you believe that you have been wrongfully denied, you may want to consider speaking with an immigration attorney to review the facts of your case.

Other reasons for refusal

Other common nonimmigrant visa included refusals based on Sections 221(g) or 212(a) of the Immigration and Naturalization Act.

  1. INA §221(g) Issues
  2. Under INA §221(g), a visa may be refused if it appears to the consular officer from statements in the application, in the papers submitted to the officer by the applicant, or evidence from a third party or reliable outside source that the applicant is ineligible to receive that particular visa or such other documentation or the application fails to comply with immigration laws.

    An example would be if an H-1B work visa applicant was refused because the consular officer did not believe that the applicant possessed the requisite qualifications to perform the offered job.

    If an applicant has been refused under §221(g), the individual may be able to overcome the refusal by presenting additional documentation to the consulate. Practically, if an individual is refused a visa, he or she should contact an immigration attorney who can contact the chief of the nonimmigrant section to discuss the matter. If the attorney is unsuccessful at this level, the case should be discussed with the chief of the consular section. Since there is no judicial review of nonimmigrant processing, the attorney must exhaust every possible alternative within the consulate before the matter is referred to the State Department for an advisory opinion.

  3. INA §212(a) Issues
  4. Under the INA §212(a), various classes of aliens may be ineligible for visas or admission on grounds related to health, criminal activities, security, public charge, etc.  For example, a person applying for a tourist visa may be denied under § 212(a) if he or she has been arrested and convicted of a crime. 

Conclusion

VisaPro Attorneys have years of experience training and helping foreign nationals put together the correct documentation for visa interviews all over the world. In our experience, the approval rate for foreign nationals with the correct documentation is very high.  Talk to us before you go to your first interview so we can help you avoid a visa denial.  If you’ve already been denied, contact a VisaPro Attorney so we can assess your situation and help you decide if reapplication is right for you.


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