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 may 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?
- §214(b) denials are among the most common form of U.S. visa denials.
- A §214(b) denial is not fatal but can be avoided or overcome
- Bringing the right forms of evidence to the interview can be the key to succeeding at a visa interview
1. What Is Section 214(b) of The Immigration And Nationality Act (INA)?
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…”
What this means is that all applicants for a nonimmigrant visa are presumed to be an immigrant, i.e. the applicant wants to move to the U.S. permanently. This is called the “presumption of immigrant intent.” The presumption of immigrant intent can be compared to “you are guilty until proven innocent.”
Since the consular officer must presume 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, in fact, do not have immigrant intent or, frankly speaking, 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).
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.
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.
2. 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.
If an Immigrant Petition (family or employment based) has been filed on your behalf, it may be very difficult to overcome the presumption of immigrant intent, even if you are not actually eligible to get the immigrant visa for many years.
3. Is A Denial Under §214(B) Permanent?
No, the consular officer should reconsider a 2nd application if the applicant can show new or 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. 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.
My Case Scenario
Anjou, a young man from central Africa, applied for a visitor visa to travel to the US to visit a younger brother living in Atlanta, GA. He was denied under 214(b) because the consular officer did not think he would be coming back to his home country. He had not gone to the interview prepared to address the intending immigrant issues. Anjou went home and gathered documents to show his ties to his home country. When he went in for his next interview he was ready. He had a single sheet that outlined for the consular officer all his reasons for staying in his home country, and attached to it were the documents to support his claim.
He started out by showing that all of his family lives in his hometown in Africa, except his brother who is attending college in the US. His family owns several properties in Africa. He owns his own business which he started when he graduated from college, and is doing very well. The business has several employees and will be run by his office manager during his absence. He also owns his own house, and will be getting married early next year. At the interview, the consular officer took the package, reviewed them quickly, asked Anjou a few questions about his trip and granted the visa. Preparation paid off for Anjou and at the beginning of the month he will be off to the US to spend a couple of weeks with his brother.
4. What can be done if a visa is denied under §214(b) for lack of residence abroad?
Since the applicant must show that circumstances have changed and/or they have further compelling evidence to show strong ties on reapplication, it may help to answer the following questions before reapplying.
a.Did I explain my situation accurately?
b.Did the consular officer overlook something?
c.Is there any additional information I can present to establish my residence and strong ties in my home country or country of residence?
Applicants should 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 officers are not required to review any of the documents you bring to the interview. An officer can make a decision solely based on the DS-160 and the answers to any questions he or she may ask.
5. 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.
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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