So you just had your interview for a visa with the U.S. Consulate in Ho Chi Minh City or the U.S. Embassy in Hanoi, and you were informed that your visa application was denied. You were not given any explanation as to why your application was denied, but you were given a letter which says that you were found ineligible for a nonimmigrant visa under Section 214(b) of the U.S. Immigration and Nationality Act (“INA”). In this blog post we will demystify the all-too-common and often misunderstood INA 214(b) visa denial.
You want to go to the United States to see friends or family, to study, for tourism, or for other valid reasons, but you find out that you need a U.S. visa. So you take the time to complete the required visa application; pay the visa application fee; schedule an interview appointment with the Consulate/Embassy; and, gather all of your documents for your interview. On the day of your consular interview, you wait in-line, go through multiple security checks, and finally you are interviewed by a consular officer. The interviewing officer asks you a few questions; you try to give him/her some documents, but he/she refuses to look at your documents; and, then, after a brief two-minute interview, the officer tells you that your visa application is denied and simply gives you a letter saying that you have been found ineligible for a nonimmigrant visa under section 214(b) of the INA. You are left frustrated and confused. To view an example of an INA section 214(b) denial letter, click here.
Because every case is unique, this blog post should not be considered legal advice for any individual case. U.S. immigration law is complex, and this blog post is meant to simplify INA 214(b) and does not discuss all issues associated with INA 214(b). If you have been denied under INA 214(b) or anticipate having problems meeting the requirements of INA 214(b), you should seek the assistance of a competent U.S.-licensed immigration lawyer.
Immigrant Versus Nonimmigrant Visas:
Most foreigners seeking to enter the United States must first obtain a U.S. visa. There are many types of U.S. visas. A foreigner who wishes to enter the U.S. on a temporary basis, such as for tourism, business, temporary work, or studies, must apply and be approved for a nonimmigrant visa. In contrast, an immigrant visa is issued to a person wishing to live permanently in the U.S., such as a person seeking a Green Card through marriage. The distinction between nonimmigrant and immigrant visas is important because section 214(b) of the INA does not apply to immigrant visas.
What Is Section 214(b) of the INA?
The INA is the body of law which governs U.S. immigration. In sum, section 214(b) of the INA requires the nonimmigrant visa applicant to prove that he/she meets all of the requirements for the chosen visa classification. Because there are different requirements for the many different kinds of nonimmigrant visa classifications, a section 214(b) visa denial can be for different reasons. For example, a person seeking an F1 nonimmigrant visa to study in the U.S. could be denied under section 214(b) for failing to prove that he has been accepted into his chosen university program. But, by far, the most common reason for a section 214(b) visa denial is for failing to show that the visa applicant intends to depart the U.S. at the end of the allotted temporary U.S. stay. The burden is always on the visa applicant to prove that he/she intends to depart the U.S. If the applicant cannot show this to the satisfaction of the Consular Officer, the nonimmigrant visa application will be denied. If an applicant is denied under INA 214(b), it is recommended that the applicant ask the interviewing Consular Officer the specific reason for the INA 214(b) visa denial.
What Does the U.S. Consulate/Embassy Consider in Determining Whether Someone Intends to Depart the U.S.?
In determining whether a nonimmigrant visa applicant intends to depart the U.S., the Consular Officer will evaluate whether the applicant has sufficient ties to his or her home country which will compel him/her to return to the home country. Such ties include permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations which indicate a strong inducement to return to the home country. The reviewing Consular Officer will assess these ties based upon the information contained in the online visa application form and information and documents, if any, obtained during the visa interview. What makes this requirement so tricky is that the visa applicant must prove a present internal state of mind about the future. To illustrate, a student visa applicant must prove that she currently intends to return to Vietnam four years from now when she graduates from university in the U.S. Because evaluating an applicant’s current state of mind about the future is so difficult, Consular Officers often treat the intent to depart the U.S. requirement as a situational analysis. They will evaluate the intent to depart the U.S. requirement based upon the applicant’s life situation, such as whether the applicant has young children or a good job to come back to.
Background Facts to Understand When Applying for a Nonimmigrant Visa at the U.S. Consulate/Embassy in Vietnam:
There are certain background facts applicants should understand when applying for nonimmigrant visas at the U.S. Consulate in Ho Chi Minh City or the U.S. Embassy in Hanoi. These background facts shape visa applicants’ experiences and their chances of being approved for a U.S. visa.
First, the U.S. Consulate in Ho Chi Minh City and the U.S. Embassy in Hanoi are some of the busiest consular posts in the world. Consular officers at these posts will often interview more than 100 different visa applicants in one day alone. This is one reason why most visa interviews last only a few minutes. This is also why consular officers will often not take the time to review all documents a visa applicant tries to submit during the interview, although this may be a violation of the law.
Second, the U.S. government collects data on whether approved nonimmigrant visa applicants actually departed the U.S. when they were supposed to. Unfortunately, the rates of departure of Vietnamese citizens are lower than most other citizens. It may not sound fair, but the failure of some Vietnamese citizens to depart the U.S. when they were supposed to definitely affects whether other Vietnamese visa applicants will be granted nonimmigrant visas.
Third, without getting too political, visa denial rates are affected by the U.S. immigration views and objectives of the current U.S. President. U.S. Consulates and Embassies are part of the U.S. Department of State which is led by the Secretary of State who is appointed and reports to the President of the United States.
Fourth, unlike some other visa denials, a denial based upon INA 214(b) is not appealable. In other words, subject to some very limited exceptions, an applicant denied under INA 214(b) cannot ask to have the visa denial decision reviewed for error by a higher government agency or other person or entity–but the applicant is always free to re-apply another time. This is why the U.S. Consulate and Embassy will often say that an INA 214(b) visa denial is final when a denied applicant seeks to provide more information or evidence to overturn the denial. There is no doubt that the finality of an INA 214(b) denial, coupled with the three previously mentioned points, make the INA 214(b) visa denial a very powerful and convenient visa denial reason.
So How Can I Prove My Intent to Depart the U.S. in my Specific Case?
Unfortunately, there is no simple answer as to how an applicant can prove he or she intends to depart the U.S. in the future. Every case is unique, and each applicant may have to show different kinds of facts to prove he or she intends to depart the U.S. at the end of the temporary U.S. stay. Some cases are stronger than others. And some cases have obvious and not-so-obvious weak points.
It is also important to understand that invitation letters will often not be enough to overcome a weak case. Bringing a lot of documents to a consular interview to show an intent to depart the U.S. will also not be very useful. In fact, this approach will likely result in the Consular Officer refusing to review any of these documents. Hiring so-called immigration agents to assist is also not a wise idea. Unlike a competent U.S.-licensed immigration lawyer, these persons and companies are not properly trained and knowledgeable to adequately advise visa applicants on U.S. immigration law.
If you anticipate having problems meeting the requirements of INA 214(b) or have been denied for a visa under INA 214(b) and are considering applying for a visa again, it is strongly encouraged that you hire a competent U.S.-licensed immigration attorney to, at the very least, have the attorney conduct an initial consultation to gather the necessary facts and case background to properly advise you. There is no point in wasting time and money in completing a visa application form, paying the required visa application fee, and interviewing with a consular officer to simply be denied for a visa under INA 214(b) for not being well prepared or if your case is simply too weak. A competent U.S.-licensed immigration attorney may also be able to propose other visa alternatives which may not even require meeting the requirements of INA 214(b).
If you have any questions or require the U.S. immigration services of U.S. Consultancy Group, LLC, please contact us.