Answering reader mail: INA Section 214(b) issues in applying for Visitor/Student visas

INA Section 214(b) issues in applying for Visitor/Student visas

Dear Ashwin,
I wanted to bring my brother over to the US for Diwali, and I sent an invitation letter, but the consulate in Chennai turned him away. What do the consular officers look for in these situations, and what should we watch out for the next time I try to get a visitor’s visa for brother or parents? When can I reapply for him? 
Lakshmi


Dear Lakshmi,
Section 214(b) of the Immigration and Nationality Act (INA) 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 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 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. 

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 a marriage or graduation) 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. 

Your brother 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. 

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