Overcoming INA 214(b) denials for F, B and J Visa Applicants - By A. Sharma, Esq.

[Immigration_Vakil]

Dear Listmates,

Here is some information which will give you a glimpse into the Consular Officer's mind when processing a F, B and J Visa. Hopefully it will give you or your relatives a better chance of success in obtaining one of these two visas.

Section 214(b) of the Immigration and Nationality Act (INA) is the primary reason why applicants for F, B and J (among other) visas are rejected. It states: "Every alien shall be presumed to be an immigrant until he/she establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status..." In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case - that they only intend to visit America for a short duration. In qualifying for B (Visitor) F (Student) or J (Exchange Visitor) visas, an applicant must demonstrate compliance with this section of the law. Most refusals concern the requirement that the applicant possess or maintain a residence abroad that he/she has no intention of abandoning. Applicants thereby demonstrate that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The INA places this burden of proof squarely on the applicant. (Note that these requirement do not apply to H or L Visa holders who may maintain 'dual-intent').

Consular officers have the last word in deciding who may enter the US and evaluate each applicant for a non-dual-intent visa (B, F, J among others) to determine whether the applicant has strong ties abroad. Some examples of ties can be a job, a house, a family, and a bank account. These ties bind you to your home country and demonstrate that you will return after your trip to America. Despite the fact that consular officers attempt to provide a case-specific evaluation, they have limited time allotted to each client. It is imperative that you have a well documented and organized petition which demonstrates the strength of your applicant's case by providing evidence of the applicant's strong ties. Unfortunately, as you can imagine, these requirements are somewhat harder to prove for younger applicants, or for those applicants who have a Green Card pending (which manifests a future intent to abandon the home country).

You should also attempt to provide documentation of why the visa applicant is coming to the United States. Temporary trips of a short duration (less than six months) for a specified period of time with a clearly defined start and end date (such as an education, a marriage, training, graduation, or religious event) are more likely to be approved. Remember that an invitation letter and evidence of funds of the American 'sponsor' are of limited benefit to the applicant - the consular officer is mainly concerned with the qualifications of the applicant themselves.

An applicant who has been refused can attempt to enter the US again since a denial under section 214(b) is not permanent, however, the more times an individual is turned down the harder it becomes to become eligible for subsequent approvals. The consular officer will only reconsider a case if an applicant can show further convincing evidence of ties outside the United States. The applicant's situation must have substantially changed since the last application. Demonstration of strong ties is still key.