VISA REFUSALS UNDER SECTION 214(b) PART 1
By Michael J. Gurfinkel, Esq.
Many people applying for visitor, student, or certain other non-immigrant visas are saddened when their visa application is refused. At their interview, they are handed a sheet of paper, advising them that their visa was refused under Section 214(b).
Some of these visa applicants have a very urgent need to go to the U.S., such as a sickly or dying relative, attend a funeral, etc., and cannot understand why the consul would refuse a visa under such heart-wrenching circumstances. They become even more frustrated when an acquaintance is issued a visitor’s visa in order to go to Disneyland, or because that acquaintance told the consul that they want to go shopping on Rodeo Drive. How is it possible that one person can be issued a visitor visa to go shopping, but another person is refused the visitor’s visa in order to attend a close relative’s funeral? In this article, I will discuss various aspects of a Section 214(b) refusal.
- What is Section 214(b)?
Section 214(b) is part of the Immigration and Nationality Act (INA), which states in relevant part that: “every alien [other than certain non-immigrant applicants] shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a non-immigrant status…” In other words, every person applying for a non-immigrant visa is presumed to be intending to immigrate to the U.S., unless they can prove otherwise. It is similar to guilty until you prove you’re “innocent” of intending to immigrate to the U.S. Accordingly, per guidance cables from the Department of State (DOS) “all visa applicants are presumed to be immigrants (and hence not eligible for non-immigrant visas) unless and until they satisfy the consular officer that they qualify for one of the non-immigrant visa categories…,” such as visitor, student, etc.
- What are some of the non-immigrant visa categories that are subject to Section 214(b)?
Some of the non-immigrant visa categories that are subject to Section 214(b) (requiring that they prove or demonstrate non-immigrant intent) are visitors (B), investors (E), students (F), entourage of entertainers (O-2), to name a few. However H-1 (workers in specialty occupations) L (intra company transferees), are not subject to Section 214(b). They can even be under petition for an immigrant visa, and it will not affect their eligibility for an H or L non-immigrant visa.
- Why was my visitor’s visa refused?
One of the most important requirements of eligibility for a visitor’s visa is demonstrating non-immigrant intent. Thus, “failure to possess the intent not to abandon a foreign residence results in denial of a B visa.” In other words, under Section 214(b), the reason you want to go the U.S. is not as important as demonstrating, to the satisfaction of the consul, that you will return to the Philippines. You must demonstrate sufficient roots, ties, and connections to the Philippines, that you would want to return, vs. getting to the U.S., going TNT, and engaging in unauthorized work. That is why some people are issued a visa in order to go to Disneyland (because they may live in Forbes Park, have lots of property and money, several yayas, etc. such that they have a very good life in the Philippines, and have a reason to return), but a person wanting to attend a funeral may be unemployed, living off remittances from their family in the U.S., may be young and single and/or the last child left behind in the Philippines because they had aged out, etc. In that situation, the visa applicant may have a strong incentive to go TNT, as there is not really that much waiting for them if they return to the Philippines, vs. opportunities awaiting them in the U.S.
In a future article, I will discuss more about visa refusals under Section 214(b).
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