INA Section 214(B) and Immigrant Intent
INA 214(b) is the number one reason for nonimmigrant visa denials. It is referred to as "failure to establish entitlement to nonimmigrant status," or more commonly, "presumption of immigrant intent" because the majority of 214(b) denials are applied to intending immigrants.
The State Department issued 6.5 million nonimmigrant visas in 2008, but also rejected 2.1 million visa applications. Among them, almost 1.5 million (~ 70%) were denied based on INA 214(b).
What is Section 214(b)?
The Immigration and Naturalization Act (INA) states under Section 214b that:
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...
What it means is that a consular officer must view every nonimmigrant visa applicant as an intending immigrant who is planning to visit and then permanently stay in the U.S. The applicant, therefore, must prove to the officer that s/he is going to return home after the temporary visit. If the consular officer is not satisfied, he is required to deny the nonimmigrant visa application.
However, 214(b) is more than just "immigrant intent." Any failure to meet one of the specific requirements of the applicable NIV category results in 214(b) denial. For example, a student's F-1 visa application may be denied based on 214(b) if he fails to possess sufficient funds to cover educational expenses.
For the following discussions, 214(b) is generally referring to Presumption of Immigrant Intent, although they are not exactly equivalent.
Does "214(b) - immigrant intent" apply to all non-immigrant visa categories?
No. B visitors and F students are most affected by 214b (immigrant intent), but H-1B and L1 workers are exempt from this requirement. There are also visa categories that do not have immigrant intent provisions. More specifically:
- Visa categories that have immigrant intent provisions: B, E, F, J, M, O-2, P, Q, and TN
- VIsa categories that do not have immigrant intent provisions: A, C, D, G, I, K, N, O-1, R, S, T, and U
- Visa categories that are excluded from the immigration intent requirement: H-1, L and V
How do I avoid being rejected on ground of 214(b)?
Obviously there is no sure way; otherwise everyone would have been able to secure a nonimmigrant visa. There are a few things, however, that help increase your chances.
- You must be able to show strong ties to your home country, which you have no intention to abandon. This is the most important factor with regard to 214(b). You need to convince the consulate official that your strong ties, whether it is family members, a house or a job, is going to compel you to leave the United States after your short visit or study.
- Clearly organize your supporting documents. A consular officer only has a few minutes to ask you questions and go over your application, so make their life easier.
- Answer questions truthfully. Consulate officials do interviews for a living, and have likely asked the same question thousands of times. So guessing what the "best" answer would be often backfires.
- If you have been to the United States before and returned on time, it is certainly an example that you didn't't pursue immigration while you had a chance. Your trips to other countries are helpful too.
- There is no set time as to how long you have to wait before applying for your next visa, but if you apply too soon or too often, you may have a harder time proving your ties to your country of residence.
- It helps if your relative in the US also came back and visited you in the past.
What are considered "strong ties"?
"Strong ties" may be cultural, social, professional, or any aspect of your life that has a binding effect between you and your country of residence. Family members, a job, a steady source of income, a house, an investment and bank accounts are all examples of "strong ties." They also differ from country to country, and person to person. So a decent job may be important for one applicant, but not so convincing for another. A student or a retired parent can still get a nonimmigrant visa without a job, for example.
In short, "strong ties" is a vague concept that must be proved by physical evidence. For this reason consulate officers are trained to look at all aspects of a visa application, not one particular document or piece of evidence.
If I have document X, will I get a nonimmigrant visa?
No one document is able to guarantee the issuance of a visa, although some documents are more important than others. For example, a full scholarship is very helpful in F-1 student visa application, but doesn't't necessarily mean you will get a visa automatically. On the other hand, students with just tuition waivers or no financial aids may receive F-1 visas if they can demonstrate their sources of funding and meet other requirements.
I'm being honest, why doesn't the consular officer believe me?
Remember the consular officer is required by law to presume that you are applying for a nonimmigrant visa for the purpose of immigrating to the US. The burden is on you to prove him wrong. So it is going to be a challenge.
Every applicant will say they are being honest, but apparently not everyone is. So for an officer to tell the difference, in a matter of minutes, she has to look at all aspects of your application, not just your declaration.
A U.S. embassy or consulate will no doubt reject many legitimate visa applications everyday. But that is just the way it is. You just have to prepare your case carefully and thoughtfully, and hope for the best.
Can I apply again if my visa application has been denied under 214(b)?
Yes. A visa denial under Section 214(b) is not permanent, meaning that if you have new evidence to support your case, you are permitted to reapply. You are also allowed to apply under a different visa category if your previous application was denied on ground of 214b.
Do refused applicants have to wait three or six months before reapplying?
There is no time restriction on resubmitting an application after a refusal. If additional information or evidence is available which may further demonstrate an applicants' qualification for a visa, an application may be resubmitted at any time. However, if there is no new evidence, it is likely that the visa application will be rejected again. Also check with the consulate to see if they have specific requirements for returning applicants after 214b denial.
Does a consulate officer always know that my visa application was denied before?
Yes. Your passport contains a stamp after each visa rejection and the record is also centrally located in a computer system. So using a new passport or going to a different consulate does not hide the fact that you have been previously denied NIV application. In fact an attempt to misrepresent the situation may have serious consequences.
If I can prove that I have no immigrant intent, will I definitely get a nonimmigrant visa?
Although section 214(b) is the top reason for visa application rejections, it is not the only one. There are other grounds for visa refusals.
Can a US government official help me secure a visa?
Not really. In case of an emergency an official letter from a government agency or congressman may be helpful. But for regular visa applications, it is highly unlikely anyone would be able to help, whether they work for the government or not. Be extremely careful if a person claims he can guarantee you a visa because he knows someone who works at the consulate - it doesn't work.
Does using a travel agent increase my chances?
No. You are not required to use a third party to prepare your NIV application, and doing so does not make your case stronger by any means. You are still responsible for any errors or mistakes on your application. However, if you don't know how to properly fill out a visa application form, a travel agency or visa assistance firm may be able to help - for a fee. Generally speaking it is not necessary, because all the instructions and resources are available at DOS or immigration websites like this one, and for free.
If I'm visiting my only child in the US, does it mean I will have more problems with 214(b)?
It simply means that you don't have other children as evidence of your "strong ties" to your home country, but you can still use other means as discussed above. It can be more challenging, but many parents successfully obtained B2 visas to visit their only children in the US.
Is it more difficult to get a B2 visa if my child has a green card?
This is a typical "word on the street," and we don't know if there is any hard evidence or statistics to support it.
Can I offer a bond or deposit to guarantee my return?
No. The U.S. government currently doesn't have such a mechanism. Some travel agencies may require a deposit as part of their group travel policy, but it doesn't have anything to do with your nonimmigrant visa application.
Is visa ineligibility the same as inadmissibility?
No. Inadmissibility means a person is not admissible to the US, whether as a nonimmigrant or immigrant. In most case, a person already in the US would be subject to removal (deportation) if any ground of inadmissibility applies. This is set forth in INA section 212(a).
Ineligibility on ground of 214b means a person is not entitled to a nonimmigrant visa classification. He may very well be eligible for an immigrant visa, for example, and is admissible to the US.
Can I later apply for green card after entering US on a nonimmigrant visa?
Generally speaking, yes. As long as you didn't misrepresent your nonimmigrant intent at the time of admission, you are usually permitted to pursue permanent resident status at a later time. It is understandable that people's situations do change. For example, a student in F-1 status may decide to work under H-1B after graduation, and then adjust status when he becomes eligible. A parent in B-2 status may apply for green card if her child becomes a US citizen during her visit, although doing so immediately upon entry could raise questions about her nonimmigrant intent. Requirements and regulations may vary for different nonimmigrant visa classifications. So make sure you fully understand your situation, or consult a qualified immigration professional, before applying for permanent residency.
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