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How to avoid visa denials under 214(b) and 221(g)

 

"Liza was excited. In three days her friend Timothy would come 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)."

 

On any given day throughout the world many 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. What does a 214(b) visa refusal mean? And what can applicants and friends do to prepare for a visa reapplication?

 

What is Section 214(b)?

 

Section 214 is part of the Immigration and Nationality Act (INA) and controls the admission of nonimmigrants to the U.S. Subsection (b) 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…

 

To qualify for a visitor or student visa, applicants must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Both sections, as do most nonimmigrant visas, require that the applicant proves that they have ‘nonimmigrant intent,’ i.e., that they will leave the U.S. at the end of their authorized stay. Failure to prove their nonimmigrant intent will result in a refusal of a visa under Section 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.

 

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 quick review of whatever evidence of ties 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 job, a house, a family, a bank account.

 

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.

 

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 to a residence outside the U.S. The applicant 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.

 

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

 

First, applicants should carefully review their situation and realistically evaluate their ties; what will make them want to come back. Then they can 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 a visa under Section 214(b) may reapply for a visa. However, 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:

 

Applicants 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 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 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 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.

 

Other reasons for refusal

 

Nonimmigrant visa refusals may also be based on the Immigration and Naturalization Act sections 221(g) or 212(a).

1. INA §221(g) Issues
   
   Under INA §221(g), a visa may be refused if it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation, under §212 or any other provision of law, or the application fails to comply with the provisions of this Act, or the regulations issued thereunder.
   
   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, the attorney should 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.
   
   
2. INA §212(a) Issues
   
   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.
   

 

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!”

 

Conclusion

 

ExpressH2B Attorneys have been training and helping foreign nationals put together the correct documentation for a visa interview. In our experience, the approval rate for foreign nationals with the correct documentation is very high. If you are a foreign national seeking advice on visa denials consult an ExpressH2B attorney.