TRUMP BLUSTER MEETS THE LAW: “JUST BECAUSE…” IS NOT A REASON TO DENY A VISA.
Posted on September 24, 2025
Listening to the bluster of the Trump Administration, one gets the impression that – legally – any person can be denied a visa JUST BECAUSE: just because their personal views are abhorrent to this Administration; just because they express those views publicly; just because they were involved in some traffic stop 15 years ago. But here’s the thing – that’s not true.
The Trump Administration may not like it, but it is subject to the law. The courts in the US have repeatedly handed the Administration loss after loss when it has tried to deport individuals on free speech and other questionable grounds. But visa applicants outside the US do not have the US courts as a legal backstop: courts have bound themselves by the doctrine of consular non-reviewability – disempowering themselves from the review of visa denials. This means that no matter how ridiculous a visa refusal may be, courts generally will not get involved.
But that does not mean the Trump Administration is right in denying visas JUST BECAUSE. There are legal standards to be applied when making a visa decision. The most important ones regarding nonimmigrant visas state: “Nonimmigrant visa refusals must be based on legal grounds, such as one or more provisions of INA 212(a), INA 212(e), INA 214(b) or (f) or (l)… INA 221(g)… When a consular officer knows or has reason to believe a visa applicant is ineligible and refuses the issuance of a visa, he or she must inform the alien of the ground(s) of ineligibility ….” In other words, in order to deny a visa, there must be a reason to believe that the visa applicant is ineligible under the law and tell the applicant the applicable provision of law. Here’s the really important part: “reason to believe,” as defined by the Department of State, is “facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa… Reason to believe must be more than mere conjecture or speculation—there must exist the probability, supported by evidence, that the beneficiary is not entitled to status.”
Most recently, we have written about the recent weaponization and widespread abuse of Section 214(b) in denying nonimmigrant visas. This widespread abuse not only infects the B visitor and F student categories, but the O-1 Extraordinary Ability and J-1 Exchange Visitor categories. So how do these refusals look in the real world? Often, they are just a conclusory, broadbrush denial statement in the visa refusal sheet: the applicant “was unable to establish to the satisfaction of the consular officer that his activities in the United States would be consistent with the visa category for which he applied.”
Reading between the lines, this usually means that there is a suspicion that the person will engage in unlawful employment, remain in the US, or engage in some “illegal” or “undesired” activity based on past behavior (e.g., hateful speech, unlawful conduct). But this boilerplate refusal does not state why the consul came to this conclusion: why did the consul have a reason to believe – more than a mere suspicion - that the applicant’s intended activities in the US would not be consistent with the visa category? So the answer begs the question: why won’t the consul disclose this information? Well, their position is that they don’t want to “coach” the applicant. The reality is that often, the consul is unable to articulate or substantiate a reason for the denial, or if they can, it may be just a mere suspicion, and that fails the “reason to believe” standard. They cannot defend the indefensible. Sometimes, they are just implementing unannounced policies penalizing or punishing across-the-board certain visa applicants who meet a specific profile.
If you or a loved one or friend have been subjected to a whimsical or arbitrary visa refusal, please feel free to contact us.