When someone is denied a visa under section 214(b) of the Immigration Nationality Act, almost everyone involved in the decision–the visa applicant, the adjudicating vice consul, and the applicant’s immigration attorney–reflexively concludes that it’s because the applicant failed to demonstrate a lack of immigrant intent. The reason for this is pretty straightforward–the language of section 214(b) expressly references it:
“(b): Presumption of status…Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15) and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant (emphasis added) until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officer, at the time of application for admission, that he is entitled to a nonimmigrant status under section section 101(a)(15). “
Generations of entry-level consular officers have been instructed by consular trainers at the Foreign Service Institute that section 214(b) places the burden on the visa applicant of demonstrating to their satisfaction that they lack immigrant intent–and that if they are not convinced that the applicant they are interviewing intends to return to their overseas residence, they must deny him or her as an intending immigrant. This training is reinforced by their colleagues on the visa line, and quickly becomes part of the rote rationale for visa denials provided to applicants both orally and in writing:
“You did not demonstrate that you have the ties that will compel you to return to your home country after your travel to the United States” (taken from the form letter given to visa applicants denied a visa under section 214(b) utilized by the U.S. Consulate in Mumbai)”;
” I am not persuaded that you will return to your residence abroad if you are issued a visa;” (one of the most common oral explanations given by consular officers to applicants whose visa applications they have denied under section 214(b)).
Because the vast majority of nonimmigrant visa denials are based on section 214(b), and the majority of those denials are because the applicant had weak ties to a residence abroad, is it any wonder that “intending immigrant” is the default rationale used by consuls at the end of the visa interview? And most of the time, this is the meaning.
But there is another aspect of a 214(b) denial that seems to be happening more frequently, to applicants who have well documented and solid ties to a home outside the United States–immediate family members, property, remunerative employment or thriving businesses, and even prior travel to the U.S. Despite these ties, they are leaving their visa interviews with 214(b) denial letters. How can these individuals be denied for having weak ties or immigrant intent? Are consular officers erroneously imposing 214(b) on applicants who are not intending immigrants?
On closer examination of section 214(b), following the presumption of immigrant intent, the statute does not then say that the applicant must rebut it by demonstrating lack of immigrant intent in order to qualify for visa issuance. Instead, it says that the applicant must demonstrate to the consul’s satisfaction that he or she “is entitled to a nonimmigrant status under 101 (a)(15).” You could argue that showing entitlement to nonimmigrant status is the same thing as demonstrating lack of immigrant intent, but in practice these two aspects of 214b can be and are, increasingly, applied differently to achieve the same outcome–visa denial.
For example, an applicant who is an international businessman with undeniably strong ties abroad who clearly does not intend to remain in the United States can still be denied visa issuance under 214(b) if the consul concludes that he or she is not entitled to receive a visa under the law because his intended activities are not permitted under U.S. law. A student visa applicant whose parents are multi-millionaires and who has no other ties in the United States can get a 214(b) denial if the consul concludes that the applicant does not actually intend to enroll full-time in a degree-granting college or university. And a consul can deny a treaty investor visa applicant under 214(b) if he or she fails to demonstrate that they have satisfied the core requirements for visa issuance. None of these applicants has objective immigrant intent, but each of them can be denied under section 214(b).
Consuls have also become more nuanced in their use of section 214(b) denials in recent years, and appear more willing to impose it on applicants who might otherwise be considered low immigrant risks when there is doubt about their intentions in seeking the visa. This trend may also shed light on reports of increased use of section 214(b) to deny applicants who might have a statutory grounds of inadmissibility, which precludes them from requesting waiver relief because they fail to pass the “otherwise eligible for visa issuance” threshold. While firm evidence that section 214(b) is actually being used in this manner is elusive, a growing awareness on the part of consuls that their 214(b) denials do not have to be directly linked to a finding of immigrant intent is undeniably at play in many of those adjudications.
Section 214(b) remains the most powerful tool consular officers have in adjudicating visas because denials under this provision are squarely within consular discretion as a finding of fact, and can only very rarely be challenged as erroneous under the law. Consular processing practices that are representing clients with 214(b) denials without having a complete understanding of how it operates or how consular officers are now applying it, are not serving the best interests of their clients.