Ms. A was convicted for operating a scale at a market which did not weigh produce correctly. The statute under which she was convicted did not have an intent requirement. So we prepared a Legal Opinion on her behalf arguing that this was not a crime of moral turpitude, or in the alternative, that this crime met the requirements of the petty offense exception. After reviewing the Legal Opinion, the consular officer issued the immigrant visa to Ms. A.
The stakes are incredibly high for individuals applying for F-1 student visas. For those young adults accepted to universities, the outcome of the visa interview will determine where you will spend the next four years — or more. The hopes of your family and your dreams depend on that interview. For those seeking to attend an English language program, a job promotion or marketability may be at stake. For a graduate student — an MBA from a US university may mean the difference between a skyrocketing career or stagnation. Yet, with so much at stake and hundreds of thousands of student visa applicants refused every year, these individuals often fail to take basic steps to maximize their chances for the visa.
Categories of Student Visa Applicants
In general, each student visa applicant must show that he or she: 1) is a legitimate student; 2) has the ability to cover the costs of education and living in the US; and 3) has strong ties to the home country and will depart after the education program is finished. But the “strong ties” element is interpreted by consuls differently depending on the type of student visa applicant: 1) for a 17–20 year old first-time university applicant, the consul factors in that the applicant does not have traditional ties (spouse, children, property) or clear, long-term plans, and so the focus is on the student’s immediate intent and academic and familial background; 2) for a mid-20s graduate student applying for an MBA or other advanced degree, the consul focuses on the applicant’s academic track record, career plans, and how the graduate studies will further those plans; 3) for a mid-career student visa applicant (late 20s–45), the consul will hone in on current job, ties, career stability, ambitions, the academic program, and ability to complete it; 4) for English language students, the consul’s focus will depend on the age/background of the applicant and how the English program may factor into a longer-term plan; 5) for the casual/hobby student who may be a housewife or whose academic program is not integral to career, the consul will focus on ties; 6) for an elementary or high school student, consular review will be inextricably tied to the parents’ ties and finances; and 7) for a returning student to the same academic program, the consul is supposed to exercise deference and allow the student to finish school, as long as there was not a material change in circumstances.
Reasons for Denial
Over the course of more than 25 years of visa practice, we have seen the entire gamut of student visa denials. We have been able to cull some of the most frequently cited or implied reasons for refusals. Although a few of the reasons are listed in the sister 214(b) article on this site, below we have focused exclusively on some of the most frequent reasons for denial of student visas:
- Country of Origin. The most decisive factor in the outcome of the student visa application is the country of nationality. A student from economically developed and politically stable Germany, in general, should not have any problem whatsoever, whereas applicants from Afghanistan, Congo, and Uzbekistan have the odds stacked against them. (The Department of State does not publish country refusal statistics for student visa applicants, but B visa refusal rates are published and serve as a very rough approximation of how students from those countries are treated.) In some cases, unless a prestigious job is awaiting the applicant’s return to a less developed country, it may be difficult to overcome the odds and receive a student visa.
- Ties. As discussed above, the strength of one’s ties are viewed through the prism of age. For young applicants, their parents’ occupations — the “Who’s your Daddy?” test — may become a critical element in the analysis (rightly or wrongly). If the applicant’s father “works with his hands” the applicant may be viewed as coming from a poorer family and thus more of an immigration risk. As a part of this standard-of-living analysis, the consul may treat those from rural areas or small towns with less fealty and more likely to deny than those from large cities. A lack of travel to Eurozone countries may be considered a negative, evidencing, in the eyes of the consul, the family’s tenuous financial position and lack of discretionary income, or reflect a “sheltered” applicant who has not yet seen the world. “Visit some other countries and then you can ‘graduate’ to a US student visa” seems to be the consular mindset. For student visa applicants in their early to mid-20s, the consul may view them as “tweeners”: too old to be a new student, too young to have established a career or strong ties in the home country. Working for a company for less than 1 year after university graduation in the home country may reflect instability or wanderlust, not conducive to issuing a student visa.
- Interview Problems. Because student visa interviews usually last 2–3 minutes, the applicant only gets one chance to make a first impression. And it is that first impression that counts. While a consul is not supposed to reevaluate the applicant’s English, an applicant’s insufficient English is factored in anyway. An inability to articulate reasons for selecting the university may be fatal. An inability to articulate how a program fits career plans — also refusal worthy. An inability to answer simple, standard questions (e.g., What are your plans after graduation? What does your dad do?) are troublesome, as are long, rambling answers. The applicant’s disposition at the interview is also critical: inertness or passivity or a failure to show ambition can tip the scales against the applicant. Nerves, poor body language, looking down, negative vibes, poor dress or even ostentatious dress — are all negative factors.
- Inadequate or Inadequately Documented Finances. The student visa applicant must be able to show the ability to pay for the first year of an academic program. Consuls posted in developing countries are very alert to fraud in this regard. Bringing a bank statement showing the transfer of $50,000 on your sponsor’s account 2 days before the interview will raise the question of the source and whether the funds are truly available to pay for the education. Parent-sponsors holding poorly-paid government positions may be subjected to skepticism. Friends who are sponsors may also raise questions: how strong is the commitment of this family friend? How well do you know this uncle-sponsor? When was the last time you saw him?
- Previous US Visa Denial. While a recent previous US visa denial is not a death knell for a student visa applicant, it is a distinct black mark. You can be sure that the consul will review the reason for the visa denial and see if that reason “translates” to the student visa application as well. For example, if you had applied for a visa to visit the US to attend a friend’s wedding, it is very possible that a “lack of ties” factored into the denial, and will also lead to a student visa refusal. If the denial was recent, the current officer may even consult with the previous consul about “what happened” at first interview. The impression of seeking a visa “by hook or crook” may also form for the consul: “Two months ago you tried to go to the US to ‘attend a wedding’, now you ‘want to be a student’." To the consul it looks fishy. One does not “solve” a previous B visa problem by applying for an F visa.
- Change of Status in US. Many tourists, visitors and Summer Work Travel participants after arriving to the US decide to stay and enroll in school. They change their status and attend school. But what they fail to foresee is the “greeting” that they will receive at the Embassy when they return home to apply for a student visa. They are not considered “returning” students, entitled to deference, but first-time student visa applicants. In the worst case, the consul may feel deceived by the failure to return home after the lapse of their initial status and slap a 212(a)(6)(C)(i) finding on the applicant. Another consul may simply deny under Section 214(b). This, regardless of how long the person studied in the US, how little time is left until graduation, or how much money was already spent on the unfinished education.
- Section 221(g) Refusal. While a 221(g) decision is only a temporary refusal, the impact could be permanent. If delays cause a student to miss a semester or unable to return to OPT, the student will consider other alternatives. Most prone to 221(g) are Chinese and Russian STEM participants, with the concern of espionage at the forefront. Front-and-center on the consul’s radar are the technologies on the Technology Alert List. Going home mid-semester to attend a friend’s wedding is a recipe for disaster for a STEM student in need of a new student visa. Similarly, those who have a common name may be forced to enter the 221(g) Twilight Zone — caught in the limbo between visa issuance and hard refusal. If the 221(g) becomes protracted, a writ of mandamus lawsuit may be appropriate.
- Visa Consultants/Travel Agents/Notaries. They are often compensated after issuance of the visa, and so their zeal to maximize the chances of receiving the visa sometimes knows no ends. They may supply fake academic credentials or fake or doctored bank statements. The problem for the student is that this may lead not to just a 214(b) refusal, but to a 212(a)(6)(C)(i) permanent bar. Even if you were not aware of the fake document, the consul will reflexively impute knowledge to you, saying that you are responsible for your agent’s actions.
- Other Document Problems. Forgetful applicants who do not bring a needed document, such as TOEFL or GRE results or confirmation of a scholarship or bank statements of the sponsor, may end up on the wrong side of the visa decision. While these kinds of situations may be ripe for a 221(g) temporary refusal contingent on the submission of the missing document, sometimes the busy consul will be less forgiving, and render a 214(b) decision.
- Relatives in the United States. A frequently asked question at the interview relates to relatives in the US. The DS-160 asks not just for immediate relatives but other relatives in the US. A failure to disclose the relative in the DS-160 may be considered a material misrepresentation and lead to a 212(a)(6)(C)(i) decision. The interview discussion may center on how the relative settled in the US. If by means of asylum, this may seriously dampen the student visa applicant’s chances. If the applicant’s sibling remained in the US after a Summer Work Travel program, this could also be considered a strike (a loss of “family credibility”). If a sibling is in the US as a student, the consul may consider one sibling in the US as “enough”.
- Filing of Immigrant Petition I-130 for F-1. A student visa applicant for whom an immigrant petition has been filed could have a problem. There is a DS-160 question that asks this question directly. Failure to indicate the filing of such a petition could lead to a permanent bar. Indicating the petition could lead to other questions: how long ago was the petition filed? Where is the applicant in the immigrant visa line? If the applicant may be entitled to an immigrant visa in the near future, the consular attitude may be that there is no need for a student visa because an immigrant visa will be received soon.
- Suspicious Source of Funds. The “Who’s Your Daddy?” test may backfire if your father (or mother) — or even one of his close business partners — has earned “questionable” money, particularly if those funds are being used to pay for the education in the US. Similarly, if your father is an “elite” close to a regime anathema to the US, then this may negatively impact the consul’s decision.
- Suspicious Courses or Institutions. Certain courses or institutions may set off “red flags” for a consul. Perhaps, a consular validation study showed that student visa recipients attending certain schools were not likely to return home. Or a consular sense that a two-week English language course is just a pretext to stay in the US may be prevalent. “How much will your English improve in 2 weeks?” may be the unspoken consular feeling.
- Small, Unknown Community Colleges. While the “quality” of the institution is not supposed to factor in to a consul decision, sometimes it does. A consul may be more deferential to an Ivy League school applicant — “must be a serious smart student” — than to Community College X in the middle of Nebraska.
- Mistakes in DS-160s. It is common sense that the DS-160 should not contain any mistakes but experience has shown that they occur all of the time. Cultural differences, language deficiencies, simple negligence, and unfamiliarity with US law can sometimes play a role here. For example, a person may consider himself “unemployed” because he does not work for someone else. But that same person probably would have received a visa had he indicated his actual situation: he was self-employed, had created his own nonprofit organization and had 8 employees working for him. A failure to indicate certain countries visited can lead to a refusal. A common error is the omission of a conviction that has been expunged, which may lead to a standard 214(b) denial as well as a misrepresentation finding (and possible inadmissibility for the underlying crime as well).
- “Weak” DS-160. The DS-160 does not provide many opportunities to indicate in-depth detail, but where it does, the applicant needs to wisely utilize the space. A failure to do so can lead to a refusal. For example, if a mid-career student visa applicant for an MBA merely indicates her duties at her bank as “administration, calculate budget” and is passive at the interview, the consul may be less than impressed.
- Bad Students. The consul will question issuance of a visa to a returning student who has a poor academic track record while in the States (e.g., poor grades or poor attendance on an initial F-1 visa).
- Previously Spent Substantial Time in US. When a student visa applicant had previously spent substantial time in the US, the consul may believe that it is “time to spend some time at home” to reestablish ties to the home country. For example, an applicant who studied in high school for four years and is very “Americanized” who now wishes to continue studies in the US may encounter such a consular mindset.
- Worked in US Illegally. For a student visa applicant who had previously worked illegally in the US this is a no-brainer for the consul. Not only did the applicant engage in illegal behavior, but this probably reflects poor finances and a lack of economic ties to the home country. This applicant will not be receiving a student visa.
- Arrest in US. An arrest in the United States will trigger a visa revocation, and at the very least, serious problems trying to overcome 214(b). For example, a Summer Work Travel program participant arrested for shoplifting in the US may seek to study in the US the following year. Usually, the consul will want to see some time pass before issuing a new visa. There may be maturity questions, a decision to punish the student, or the consul just wants to be cautious: is this person a risk to engage in criminal behavior again?
- Previous SWT Participant. If the applicant had previously spent time in the US as a Summer Work Travel participant, the consul may expect a certain level of proficiency in English. And so an attempt to return to the US as a student may be doomed because the consul deems “inadequate progress” in the English language while the applicant was in the US for a Summer Work Travel program.
- Politics. Some visa refusals, including student visas, are tied to the ebb and flow of politics. From the Trump Travel Bans of applicants from mostly Muslim-majority countries, to Chinese scholars (“Visas are the Newest Weapon in US-China Rivalry”) and Russian students (“Russian Students Started Getting Denied US Visas More Often”), when geopolitical tensions ratchet up, the number of refusals and delays also go up.
- Admissions Process Mistakes and/or Misrepresentations. Another ripe area for potential misrepresentation findings is when a consul digs into an applicant’s qualifications. For example, if university enrollment is contingent on passing a certain exam, and the applicant applies for a visa with an already-issued I-20, the consul may doubt whether the university is fully aware of the applicant’s “missing” qualifications. Was it a university oversight or did the applicant submit false academic records to the university?
- Refusal Due to Inadmissibility. All student visa applicants are subject to the general grounds of inadmissibility, including health, criminal, security and immigration violations. For example, if the applicant had a conviction for a serious crime of moral turpitude — even if it took place 10 years ago and was expunged — he is not eligible for a student visa without a nonimmigrant waiver. If the company that he owns provided a bogus employment letter to an applicant for a US visa, he could be accused of having engaged in alien smuggling, another grounds of inadmissibility requiring a nonimmigrant waiver.
- US-based “Significant Other” Sponsor. The finances discussion above addresses the commitment of the financial sponsor. If the student visa applicant and sponsor in the US have a romantic relationship, this may raise questions about the applicant’s and sponsor’s motives: is the student visa being used as a pretext to move to the US? The consul will take a much closer look at the ties and intentions of the applicant and may consider that a fiancée visa is the more appropriate visa.
- Dependents Staying at Home while Breadwinner Goes to the States to Study. While it may seem counterintuitive to view this as a negative — after all, the applicant is much more likely to return home if his family remains at home — the consul may wonder: “If the applicant leaves his job and will not be earning a salary in the US, who will support the family financially?” The applicant is going to the US to study, not work, so how will the family be supported in his absence?
- Dependents Applying Separately from the F-1 Student. Although the consul is supposed to deny the dependents “rarely” in a situation after the F-1 receives a visa, if the consul feels that the applicants tried to game the system by applying separately, she may deny the family members.
- Social Media. If the applicant’s social media shows drug use or a “party animal” or “spoiled rich kid” persona, the consul may question the seriousness of the student.
- Questionable Contact Persons Listed in DS-160. For students, the DS-160 requests two contacts. If a contact listed is on an embassy “black list” or was previously denied a US visa, the negative association effect may rear its head.
- Discrepancies or Illogicalities, Something is Odd or Does Not Make Sense. Consuls are creatures of habit, and so when something does not seem right, the student visa applicant starts out in a hole. If the applicant indicates that she previously studied in Germany but her passport does not show entry to Germany, the consul may question whether the applicant had actually studied in Germany. Similarly, the consul may be suspicious of the backstory of an ESL applicant and his employer if the applicant has only worked for a company for a few months and is now being sent to the US for a 3-month English course.
- Applying in Third Country. While not a “discrepancy”, a consul may view a recent immigrant/resident with added suspicion. For example, if she legally moved to the UK from Nigeria last year and now wants to study in the US, the consul may take the approach: “Come back and apply again when you are more settled in.”
- “Eternal Student” Problem. A student visa applicant who seems to show more interest in collecting diplomas or the college “experience” than working or a career may test the patience of the consul. This is particularly true where the applicant seems directionless — perhaps working on a 3rd Ph. D. or in the 6th or 7th year of a 4 year program.
- Consular Misunderstandings of Facts or Law. Reviewing, interviewing, and deciding student visa applications within a 2-3-minute period inevitably leads to mistakes. Factual errors, misunderstandings at the interview, language issues, and legal mistakes are not uncommon (for example, failing to apply the petty offense exception to a shoplifting conviction; thinking that the post-studies grace period is only 30 days, not 60 days).
- Coursework in US Perceived to be of “No Use” in Home Country or in Furtherance of Career. Although consuls are supposed to be agnostic on the content of the curriculum, the rational side of the consul may lead to suspicion: “Why is this applicant planning to study agriculture in the US when his home country does not grow its own food?” Or “She works as a financial consultant, so why is she applying to take a journalism course?”
- Status Violations. There are numerous rules and regulations that a student must comply with while in the United States, such as minimal levels of coursework, restrictions on employment, and reporting requirements for changing an address or major. Failure to abide by these rules and regulations may result in a visa refusal.
- Admitting to Unlawful Behavior. While an activity such as smoking marijuana may be permitted in a state, it still is a violation of federal law. So even if a student has not been detained, arrested or convicted of possession or smoking marijuana, admitting to the use of marijuana to a consul (or an airport inspector) is grounds for a finding of inadmissibility. For the student visa applicant in such a situation, a nonimmigrant waiver — which can take several months — would be required. In addition, the consul may require that the student meet with a doctor to ensure that there is not an addiction problem.
- OPT Issues. The rules surrounding OPT are complex. For example, if an individual has OPT authorization but leaves the US before receiving a job offer, the OPT authorization may be invalidated. And while consuls are supposed to be cognizant of the importance of OPT to the program, the idea that an applicant is returning to “work” in the US rather than study may prompt a reevaluation of the applicant’s ties to the home country.
- Technical Issues. A typo, a mistake in the SEVIS system, a failure to enter information, an oversight by a school official — while seemingly trivial, such technical errors can lead to delays and refusals.
- Failure to Apply in Timely Fashion. Needless to say, it is common sense that one needs to abide by the start date in the I-20. A late application can torpedo your student visa application.
- Directionless, Older Prospective Students. These are applicants who have an unstable job history and appear rudderless to the consul. Intending to go to the US on a whim with no real strong academic purpose may reflect a lack of ties in the home country, a risk to remain behind in the US.
Prevent and Overcome Denials
Hopefully, it will not come down to 7 attempts to finally receive a student visa as we wrote about for one young woman. While one cannot change your country of origin or parents, there are many things within the student’s control. The reasons listed above shed light on the steps that you can take to avoid denials: good planning, preparation, English, dress, and attitude are just the start. Professional legal help — at the least reviewing your DS-160 and supporting documentation and conducting a mock interview — can be critical to avoiding a refusal. If you have already been denied, a diagnosis of the problem is needed. Again, a professional can help pinpoint the problem, prepare the DS-160 and supporting documents for a re-application, and provide invaluable guidance in going through the interview. If the problem relates to a finding of inadmissibility for a misrepresentation or a criminal situation, then the lawyer can advise of the accuracy of the determination and seek review of the decision or a waiver. Finally, some of the listed reasons above do not have a basis in the law and should be challenged.
Cheap is expensive, as those who fail to consult a professional come to realize after student visa denials. Contact us and let us put our more than 25 years of experience in dealing with student visas to work for you.