After a consular officer erroneously counted an applicant’s time of unlawful presence in the United States, we helped her overcome this finding and have her time of inadmissibility reduced to three years from ten years.
Section 214(b) of the Immigration and Nationality Act
In 2018 and 2019, more than 5 million nonimmigrant visa applications were denied under Section 214(b) of the Immigration and Nationality Act. US law places the burden on nonimmigrant visa applicants (except for H-1B and L-1s) to show that they are not intending immigrants. In addition, 214(b) requires that the applicant qualify for the visa and will act in accordance with its terms upon arrival to the US. Nonimmigrant visitor visa applicants (B) must show that they have a foreign residence that they have no intention of abandoning and are visiting the US temporarily for business or pleasure. Student visa applicants (F) have the additional burden of showing they have the qualifications necessary to pursue a full course of study and the intent to return to their home country upon the completion of their studies. Employment visa applicants must show that they have the qualifications for the visa for which they are applying. There is no time limit or statute of limitations on invoking 214(b), i.e., we have seen instances where a consul invoked 214(b) because of an applicant’s prolonged time spent in the US and suspected unlawful employment violation more than 10 years ago.
A very common tool used by consular officers now is visa revocation. Tens of thousands of individuals every year have their visas revoked because of “new information that came to light after visa issuance”. According to the consul, this “new information” casts doubt on whether the individual still is qualified for the visa and therefore subject to 214(b) or other ineligibility provisions.
Applicants refused nonimmigrant visas are handed standard rejection letters stating that the reason they were denied is because they lack strong ties to their home countries or do not meet the standards for issuance of the visa. In fact, the actual reasons for the denial vary greatly. As is often the case, the actual reason may not be a legitimate, valid reason. Over the course of many years, we have compiled a list of actual reasons used by consular officers to deny applicants under Section 214(b). The most popular are:
- Limited ties to home country. These are individuals who are young, unemployed or have a low- paying or new job; have no children; are not married; live in rural areas; and/or own no property or assets.
- Interview problems. The importance of the interview cannot be underestimated. How the applicant conducts himself; his honesty in answering questions; how he is dressed; reactions; facial expressions; eye contact; hesitation in answering questions; discrepancies in answers to questions and information contained in the application form; nervousness — all go into weighing the applicant’s intentions, credibility, and eligibility for a visa.
- Inaccurate consular understanding of facts or law. Consular mistakes in the review of visa applications are manifold. Officers have limited time and resources; may be deficient in the local language; and are inadequately trained in a very complicated area of the law. Verification of an applicant’s company may have been deficient. For example, a consular investigator may have went to the wrong address, or concluded that a company was liquidated when in fact it was still operating.
- Failure to meet the criteria for issuance of a work visa (e.g., E-2, H-1B, L-1, and O-1). Temporary employment visa requirements are technical. Applicant failure to meet the requirements may lead to a denial. While USCIS approval of work-related H, L, and O petitions are supposed to be deferred to by consular officers absent fraud or new, material information, consular officers often deem themselves in a “better position” to evaluate the credentials of the applicant. An O-1 filmmaker applicant who does not have the credentials of “Steven Spielberg” or an L-1 businessman who “only” has 20 employees may have their petition approvals recommended for revocation to USCIS by a consular officer. An E-2 applicant who spent significant time in the US laying the groundwork for a future business may be accused of unlawful employment and denied under 214(b).
- Fit overstay profile or from a country in which many visa holders do not return home. If the applicant matches a profile that validation studies have shown tend to overstay visas, the applicant is likely to be denied. For example, Russians previously would buy timeshares in the US and use that as a pretext to visit the US. When several individuals did not return to Russia, the Embassy clamped down on such applicants, with both legitimate and not-so-legitimate timeshare owners paying the price with a 214(b) denial. US government statistics now track the percentage of visa holders who overstay their visas and their countries of origin, as well as those who apply for asylum. If a pattern of overstays or asylum applicants from certain countries emerges, consular officers will deny more and more visa applicants under 214(b) from those countries.
- General Economic and Political Situation in the Home Country. If a country is poor, wracked by civil discontent, or experiencing a highly unstable political situation, the number and percentage of 214(b) refusals for citizens/residents of that country will be at a high level.
- Numerous, long-term visits to the US, even if the I-94 authorized the stay/extending status while in the US. A consular officer may believe that:
- the applicant is no longer residing in his home country;
- may be engaging in unauthorized employment in the US;
- and/or not in the appropriate visa status.
- Indicating a prolonged visit in application. A Catch-22 situation arises when an applicant indicates an intended prolonged visit in the initial application. In the above situation, the applicant received the initial visa by not being truthful and later paying the price; conversely, indicating the truth in the initial application may prompt a 214(b) denial.
- Change of status in the US. Notwithstanding USCIS approval of a change of status, a person returning to his home country to receive a new visa after changing status often is denied a visa. A consular official may feel deceived, that the applicant’s true intent at the time of the first application was to change status. For example, the applicant stated that he planned to visit the US for tourism purposes and then upon arrival, changed his status to H-1B.
- Student-specific problems. Consular officers often deny students because
- of planned enrollment in a community college or a “non-brand name” university;
- lack of adult-like economic ties to their home country;
- enrollment in perceived non-career enhancement courses (e.g., a writer who enrolls in a business management program);
- enrollment in a program with little practicality in the home country;
- applications of older students (over the age of 30);
- a perceived poor track record while in the States (e.g., poor grades or poor attendance on an initial F-1 visa);
- inadequate progress in the English language while located in the US for a summer work-travel program).
- “Hostage” situation. A family member may be denied if traveling together with the rest of the family. For example, a college student who applied together with his parents to attend his K-1 sister’s wedding in the United States was denied a visa — “held hostage” in his home country — while his parents were issued visas.
- Other relatives who previously emigrated. This category of applicants with relatives in the US may be denied for a couple of reasons:
- the fact that an individual has a close relative in the US may be a negative consideration because it would be easier for the applicant to settle in the US;
- if the relative in the US obtained status in a manner objectionable to a consular officer (e.g., B to asylum), the officer may find the applicant less trustworthy or simply punish the applicant for the perceived transgression by the relative in the US.
- Pending or previously denied immigrant petition/application. Immigrant visa registration is usually treated as a “no-brainer” by consular officers: registration to immigrate is tantamount to an intent to immigrate.
- Submission of a DV Lottery entry. While most consular officers do not give weight to the mere submission of an entry in the Lottery, there are some that do. Of course, if one is selected as a “winner” of the Lottery and she submits an immigrant visa application, then she will be considered to have shown immigrant intent and obtaining an nonimmigrant visa during the pendency of the immigrant process or after an immigrant visa denial will be problematic.
- Applicant suspected of fraud. A consular officer may have a strong suspicion that a document (employment reference, bank statement) submitted is fraudulent, but does not have the time or resources to investigate. It is easier to just deny the application under 214(b) than to pursue a 212(a)(6)(C)(i) finding.
- Lack of travel to Europe. In some consulates, holding a UK or Schengen visa may be deemed a prerequisite to “graduating” to an American visa. Such travel to Europe may reflect the availability of discretionary income; a return to the home country after having the opportunity to stay in a European country may evidence ties to the home country. Travel to beach resorts such as Thailand or Cyprus may not address this second concern because an individual would be less likely to live and work in that beach resort country.
- Previous denial/Lack of change in circumstances since previous denial. Consular officers often reflexively defer to a previous denial, citing to a lack of change in circumstances. Obviously, there may be personal or political considerations as well. This may occur even if an applicant is re-applying within days of the original approval, presenting new evidence. “What has changed since your last application?” is a common initial question. A widespread myth among applicants is that if they change the purpose of their trip — instead of going to visit Disneyworld, they decide to enroll in an ESL program — they will increase their chances of obtaining a visa. In doing so, they are of course digging their own visa “grave” deeper, exhibiting desperation, which may reflect on their ability to get a visa for years to come.
- Application at a non-home post/re-application at new post after denied at a different consulate (“Post-shopping”). An application at a non-home post may arouse suspicions that the applicant has attempted to circumvent the home post. For example, the home post may have a bad reputation among visa applicants, and a third country post may be viewed 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 denied with a referral back to his home post. Similarly, an application at a different consulate after a refusal is more than likely doomed to failure.
- Guilt by association. An officer may deny every individual in a group because of the misdeeds of one or two individuals. For example, if an unrelated individual’s application is surreptitiously included in a baseball team’s group submission by the organizers, and the officer becomes aware of this, all members of the baseball team and its group may be denied.
- Inadequate finances to support the purpose of the trip. If the purpose of the trip is medical, then the applicant should have the financial wherewithal to pay the bills, either personally or have the support of a sponsor. An applicant in need of the medical treatment who opens a bank account immediately before submitting his visa application and places funds on the account may arouse suspicion that the funds are not his. Similarly, an affidavit of support from a non-relative submitted as a part of a student visa application may elicit a 214(b) finding because the officer may question the intention of the sponsor.
- Spouses/Children of F-1 Student. It is not uncommon for spouses and children to be denied where 214(b) is an issue, such as spouses and children of students who are located in the United States.
- 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 child. While this activity is not specifically prohibited under regulations, the overwhelming majority of officers will not issue a visa to an expecting mother.
- Applicant previously gave birth in the US on a B visa. This issue has several fact-based mutations:
- at time of initial application for a B visa, the applicant was pregnant;
- at time of initial application for a B visa, applicant was not pregnant;
- applicant failed to pay the hospital bills associated with the birth.
- 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) finding. Inviting parties or invitations certified by notaries in the post’s “black list” will also lead to a 214(b) (or 212(a)(6)(C)(i)) finding. Knowledge of a bogus support letter, for example, will be imputed to the applicant and usually lead to a 212(a)(6)(C)(i) decision.
- Get-acquainted trip to see significant other. Invitations from Americans to their romantic interests often lead to denials. There does not seem to be regard for the stage of the relationship, whether the couple met last week over the Internet or have known each other for years and met each other in the applicant’s home country or in third countries. Usually, little regard is given to the applicant’s ties. There seems to be an assumption that the applicant will do anything to get out of her home country; that the American is her “ticket out”; and that the parties will marry upon her arrival in the States.
- Failure to comply with a post’s specific application requirements. Some posts may require original documents, such as bank statements, tax returns stamped by the tax inspectorate, or previous international passports. Some of the requirements may seem hyper-technical or irrelevant, but they are often prompted by high fraud rates. Thus, failure to adhere to the requirements may lead to a denial.
- “Poison-pen” letters. These letters are from jilted lovers, business competitors, ex-spouses or other ill-wishers. They send the letters to the embassy, hoping to ensure the denial or a revocation of a visa and cutting off access to the United States. Often times, consular officers will take these letters at face value, without verifying the contents or motivations of the sender, and deny the visa.
- Economic and/or Political Crisis in the Home Country. If the applicant lives in a country where there is a sudden, severe economic downturn or depression or political crisis, consular officers are much more likely to invoke 214(b).
- Home Country Deterioration of Political Relationship with United States. If the applicant lives in a country where the political relationship with the United States has deteriorated, and the applicant is directly or indirectly (family members, business partners) associated with the government in power, consuls may seek to deny visas of these individuals under 214(b).
- Real estate ownership in the US. Those who own real estate in the US may be viewed as a heightened risk to stay in the US.
- 2-time participants in the Summer Work Travel Program. They may have difficulty obtaining a visa to visit friends because they are perceived as already having established ties to the United States.
- Elderly applicants. They may be viewed as more likely to become a public charge or tempted to retire in the US.
- Previous contact with police. An individual with an arrest record not rising to the level of 212(a)(2)(A) (e.g., a shoplifting conviction and two shoplifting arrests) may be considered a danger to engage in criminal behavior in the US.
- Pending immigrant applications to another country. If an individual is in the process of immigrating to another Western country, for example, Canada, and applies for a visitors visa, he may be deemed to be a danger of remaining in the US.
The elasticity of Section 214(b) of the Immigration and Nationality Act is truly a unique phenomenon in immigration law. As noted, many of these reasons are not valid reasons, and in fact, are specifically prohibited by Department of State regulations. Therefore, it is necessary to understand the consular officer’s rationale for the refusal, and when appropriate, challenge it. Failure to do so — silence — is viewed as agreement with the decision.
As can be seen, every denial is specific to that individual’s circumstances. Please contact us to discuss your situation.