Most nonimmigrant visa applicants who fail to qualify for visa issuance after their interviews are denied under section 214b of the Immigration and Nationality Act (INA). Although a 214b finding is not evidence of statutory inadmissibility, it is one of the hardest kinds of visa denials to overcome. What is it about this brief portion of the INA that causes so much difficulty for visa applicants?
Section 214b says that every alien (with a few exceptions) is presumed to be an immigrant unless she or he can persuade a consular officer during the interview of eligibility for a specific category of nonimmigrantvisa. In effect, the law charges consular officers with evaluating the visa applicant’s real intentions based on their statements, documentation and demeanor. It also grants consular officers extraordinary subjective authority to exercise their personal judgement. To this task they bring their personal experience as well as the shared wisdom within that particular consular office about the types of individuals who have failed in the past to comply with the terms of their visa.
Although section 214b does not contain the terms “home ties” or “immigrant intent,” it does, by creating the presumption of immigrant intent, place squarely on the visa applicant the burden of demonstrating a negative–namely, that they are not actually intending immigrants in the guise of a nonimmigrant temporary visitor. In short, for consular officers, the vast majority of nonimmigrant visa applicants they interview are “guilty until proven innocent,” a perspective which visa applicants and their sponsors frequently do not fully comprehend.
Moreover, a consul’s 214b determination isn’t subject to appeal, and even the Ambassador cannot compel a consul to reach a different conclusion. The only way to get a different outcome is for the applicant to apply again and try to persuade the consul to reach a different conclusion. Therein lies the principal difficulty that makes it so hard to overcome a 214b denial.
Any consul who interviews a visa applicant previously denied under section 214b is going to want to see persuasive new evidence of the applicant’s lack of immigrant intent in order to reconsider the decision of one of his colleagues, because consular decisions carry the presumption that they have been properly rendered. Therefore the first question he or she will ask a recently denied applicant is “what has changed since your last interview?” It is the rare applicant who can genuinely come up with persuasive evidence of ties to a residence abroad, for example, that wasn’t available or discussed with the consul who conducted the first interview. As a result, unless there has been considerable passage of time, allowing for credible change in an applicant’s individual circumstances, simply reapplying in hopes of a different outcome from different consul will rarely work.
Moreover, once a visa applicant has been denied, details about the basis for the denial will be available in the data base to every other consular officer who interviews the applicant in the future, which will incline them to be skeptical about the applicant’s intentions.
On the other hand, while a 214b denial may be difficult to change in the short run, it is neither permanent nor impossible to overcome. A careful review of what happened at the interviews, an objective analysis of the applicant’s strengths and weaknesses in communication, such as their level of English fluency and comprehension and whether or not they are articulate or nervous, and an assessment of whether they can provide a convincing rationale for their nonimmigrant travel, can determine whether an unsuccessful applicant might do better the second time around and how best that can be achieved.
Most individuals who have been denied visas under section 214b can be helped in this way to make a better case for themselves at a subsequent interview.