美国签证214b条款详解

214(b)

Section 214(b) of the Immigration an Nationality Act

In2011 an 2012, more than 2.5 million nonimmigrant visa applicants were enie uner Section214(b)ofthe Immigration an Nationality Act. USlaw places the buren onnonimmigrant visa applicants (except for H-1B an L-1s) toshow that they are not intening immigrants. Nonimmigrant visitor visa applicants (B) must show that they have aforeign resience that they have nointention ofabanoning an are visiting the UStemporarily for business orpleasure. Stuent visa applicants (F) have the aitional buren ofshowing they have the qualifications necessary topursue afull course ofstuy an the intent toreturn totheir home country upon the completion oftheir stuies.

Applicants refuse nonimmigrant visas are hane stanar rejection letters stating that the reason they were enie isbecause they lack strong ties totheir home countries an onot meet the stanars for issuance ofthe visa. Infact, theactual reasonsfor the enial vary greatly.Asisoften the case, the actual reason may not bealegitimate, vali reason.Over the course ofmany years, wehave compile alist ofactual reasons use byconsular officers toeny applicants uner Section214(b).The most popular are:

1.Limite ties tohome country. These are iniviuals who are young, unemploye orhave alow- paying ornew job; have nochilren; are not marrie; live inrural areas; an/or own noproperty orassets.

2.Interview problems.The importance ofthe interview cannot beunerestimate. How the applicant conucts himself; his honesty inanswering questions; how heisresse; reactions; facial expressions; eye contact; hesitation inanswering questions; iscrepancies inanswers toquestions an information containe inthe application form; nervousness— all gointo weighing the applicant’sintentions, creibility, an eligibility for avisa.

3.Inaccurate consular unerstaning offacts orlaw.Consular mistakes inthe review ofvisa applications are manifol. Officers have limite time an resources; are often eficient inthe local language; an are inaequately traine inavery complicate area ofthe law.

4.Fit overstay profile.Ifthe applicant matches aprofile that valiation stuies have shown ten tooverstay visas, the applicant islikely tobeenie. For example, uring the late 1990s, Russians woul buy timeshares inthe USan use that asapretext tovisit the US. When several iniviuals i not return toRussia, the Embassy clampe own onsuch applicants, with both legitimate an not-so-legitimate timeshare owners paying the price with a214(b)enial.

5.Numerous,long-termvisits tothe US/extening status while inthe US.Aconsular officer may believe that:

1.the applicant isnolonger resiing inhis home country;

2.may beengaging inunauthorize employment inthe US;

3.an/or not inthe appropriate visa status.

Itisusually the case where the applicant inicate abrief planne visit tothe USinthe initial application. Bystaying for aprolonge perio oftime an inicating ashort planne visit inthe subsequent application, the issue becomes one ofcreibility more than the above-mentione factors. This problem frequently arises for granmothers an granfathers who spent substantial time inthe USvisiting an helping out with anewly-born granchil an are enie visas because they have spent too long, inthe opinion ofthe consular officer, inthe US.

6.Inicating aprolonge visit inapplication.ACatch-22 situation arises when anapplicant inicates anintene prolonge visit inthe initial application. Inthe above situation, the applicant receive the initial visa bynot being truthful an later paying the price; conversely, inicating the truth inthe initial application may prompt a214(b)enial.

7.Change ofstatus inthe US.Notwithstaning USCIS approval ofachange ofstatus, aperson returning tohis home country toreceive anew visa after changing status often isenie avisa. Aconsular official may feel eceive, that the applicant’strue intent atthe time ofthe first application was tochange status. For example, the applicant state that heplanne tovisit the USfor tourism purposes an then upon arrival, change his status toH-1B.

8.Stuent-specificproblems.Consular officers often eny stuents because

1.ofplanne enrollment inacommunity college ora“non-bran name” university;

2.lack ofault-like economic ties totheir home country;

3.enrollment inperceive non-career enhancement courses (e.g., awriter who enrolls inabusiness management program);

4.enrollment inaprogram with little practicality inthe home country;

5.applications ofoler stuents (over the age of30);

6.an aperceive poor track recor while inthe States (e.g., poor graes orpoor attenance onaninitial F-1 visa;

7.inaequate progress inthe English language while locate inthe USfor asummer work-travel program).

9.“Hostage” situation.Afamily member may beenie iftraveling together with the rest ofthe family. For example, acollege stuent who applie together with his parents toatten his K-1 sister’sweing inthe Unite States was enie avisa— “hel hostage” inhis home country— while his parents were issue visas.

10.Other relatives who previously emigrate.This category ofapplicants with relatives inthe USmay beenie for acouple ofreasons:

1.the fact that aniniviual has aclose relative inthe USmay beanegative consieration because itwoul beeasier for the applicant tosettle inthe US;

2.ifthe relative inthe USobtaine status inamanner objectionable toaconsular officer (e.g., Btoasylum), the officer may fin the applicant less trustworthy orsimply punish the applicant for the perceive transgression bythe relative inthe US.

Consular officers often ask inwhat status i the relative arrive inthe USan legalize his status. Even abenign situation where aniniviual onaJSummer Work an Travel visa meets, falls inlove with, an plans tomarry anAmerican citizen can lea toavisa enial for the parents toatten the weing. There also oes not appear tobea “statute oflimitations” onthis line ofinquiry: aperson with agreen car for several years still may bethe target ofconsular wrath an the applicant left tosuffer the consequences.

11.Pening orpreviously enie immigrant petition/application.Immigrant visa registration isusually treate asa “no-brainer” byconsular officers: registration toimmigrate istantamount toanintent toimmigrate.

12.Submission ofaDVLottery entry.While most consular officers onot give weight tothe mere submission ofanentry inthe Lottery, there are some that o. For example, the Embassy inUkraine’swebsite states: “Although participation inthe DVlottery oes not isqualify one for atourist orany other visa, itoes inicate aesire toimmigrate tothe US, which isafactor inevaluating one’s ties toUkraine.” Ofcourse, ifanalien isselecte asa “winner” ofthe Lottery an she submits animmigrant visa application, then she will beconsiere tohave shown immigrant intent an obtaining anNIV uring the penency ofthe immigrant process orafter IVenial will beproblematic.

13.Applicant suspecte offrau.Aconsular officer may have astrong suspicion that aocument (employment reference, bank statement) submitte isfrauulent, but oes not have the time orresources toinvestigate. Itiseasier tojust eny the application uner214(b)than topursue a212(a)(6)© fining.

14.Lack oftravel toEurope.Insome consulates, holing aUKorSchengen visa may beeeme aprerequisite to “grauating” toanAmerican visa. Such travel toEurope may reflect the availability ofiscretionary income; areturn tothe home country after having the opportunity tostay inaEuropean country may evience ties tothe home country. Travel tobeach resorts such asThailan orCyprus may not aress this secon concern because aniniviual woul beless likely tolive an work inthat beach resort country.

15.Previous enial/Lack ofchange incircumstances since previous enial. Consular officers often reflexively efer toaprevious enial, citing toalack ofchange incircumstances. Obviously, there may bepersonal orpolitical consierations aswell. This may occur even ifanapplicant isre-applying within ays ofthe original approval, presenting new evience. “What has change since your last application?” isacommon initial question. Awiesprea myth among applicants isthat ifthey change the purpose oftheir trip— instea ofgoing tovisit Disneyworl, they ecie toenroll inanESL program— they will increase their chances ofobtaining avisa. Inoing so, they are ofcourse igging their own visa “grave” eeper, exhibiting esperation, which may reflect ontheir ability toget avisa for years tocome.

16.Application atanon-homepost/re-applicationatnew post after enie ataifferent consulate(“Post-shopping”).Anapplication atanon-home post may arouse suspicions that the applicant has attempte tocircumvent the home post. For example, the home post may have aba reputation among visa applicants, an athir country post may beviewe asmore amenable tofavorable review. The applicant who engages inthe “post shopping” may attempt anapplication atthe “favorable” post, only tohave the application formally enie with areferral back tohis home post. Similarly, anapplication ataifferent consulate after arefusal ismore than likely oome tofailure.

17.Guilt byassociation.Anofficer may eny every iniviual inagroup because ofthe misees ofone ortwo iniviuals. For example, ifanunrelate iniviual’sapplication issurreptitiously inclue inabaseball team’sgroup submission bythe organizers, an the officer becomes aware ofthis, all members ofthe baseball team an its group may beenie.

18.Inaequate finances tosupport the purpose ofthe trip.Ifthe purpose ofthe trip ismeical, then the applicant shoul have the financial wherewithal topay the bills, either personally orhave the support ofasponsor. Anapplicant innee ofthe meical treatment who opens abank account immeiately before submitting his visa application an places funs onthe account may arouse suspicion that the funs are not his. Similarly, anaffiavit ofsupport from anon-relative submitte asapart ofastuent visa application may elicit a214(b)fining because the officer may question the intention ofthe sponsor.

19.Spouses/Chilren ofF-1Stuent.It isnot uncommon for spouses an chilren tobeenie where214(b)isanissue, such asspouses an chilren ofstuents who are locate inthe Unite States.

20.Intent tovisit the UStogive birth inBstatus.The attraction for foreigners isobvious: tosecure UScitizenship for their soon-to-be-born chil. While this activity isnot specifically prohibite orpermitte uner regulations, the overwhelming majority ofofficers will not issue avisa toanexpecting mother.

21.Applicant previously gave birth inthe USonaBvisa.This issue has several fact-base mutations:

1.attime ofinitial application for aBvisa, the applicant was pregnant;

2.attime ofinitial application for aBvisa, applicant was not pregnant;

3.applicant faile topay the hospital bills associate with the birth.

Ifatthe time ofthe initial application the applicant was not pregnant an uring the course ofthe valiity ofthe visa gave birth inthe US, this isless likely tobeconsiere asanegative factor when reviewing the application. Ifthe applicant was pregnant atthe time ofinitial application an was not honest inisclosing the reason for going tothe US, this may behel against the applicant upon subsequent application inthe form ofa214(b)enial. This isparticularly true ifthe applicant i not pay the hospital bills. Inone case, itwas only after 15 years, eight214(b)refusals, an aonation tothe hospital that elivere the baby that anapplicant was able toobtain avisa.

22.Suspicious-lookinginvitations.Inviting parties with little ornoconnection tothe applicant may arouse suspicion about the legitimacy ofthe trip. Invitations invery general language orinpoor English may also trigger a214(b)fining. Inviting parties orinvitations certifie bynotaries inthe post’s “black list” will also lea toa214(b)(or212(a)(6)©) fining. Knowlege ofabogus support letter, for example, will beimpute tothe applicant an usually lea toa212(a)(6)© ecision.

23.Get-acquaintetrip tosee significant other.Invitations from Americans totheir romantic interests often lea toenials. There oes not seem toberegar for the stage ofthe relationship, whether the couple met last week over the Internet orhave known each other for years an met each other inthe applicant’shome country orinthir countries. Usually, little regar isgiven tothe applicant’sties. There seems tobeanassumption that the applicant will oanything toget out ofher home country; that the American isher “ticket out”; an that the parties will marry upon her arrival inthe States.

24.Failure tocomply with apost’sspecific application requirements. Some posts may require original ocuments, such asbank statements, tax returns stampe bythe tax inspectorate, orprevious international passports. Some ofthe requirements may seem hyper-technical orirrelevant, but they are often prompte byhigh frau rates. Thus, failure toahere tothe requirements may lea toaenial.

25.Failure tomeet the criteria for issuance ofawork visa.The temporary employment visa requirements can betechnical, an anapplicant failure tomeet the requirements may lea toaenial.

26.Real estate ownership inthe US.Those who own real estate inthe USmay beviewe asaheightene risk tostay inthe US.

27.2-timeparticipants inthe Summer Work Travel Program.They may have ifficulty obtaining avisa tovisit friens because they are perceive asalreay having establishe ties tothe Unite States.

28.Elerly applicants.They may beviewe asmore likely tobecome apublic charge ortempte toretire inthe US.

29.Previous contact with police.Aniniviual with anarrest recor not rising tothe level of212(a)(2)(A) (e.g., ashoplifting conviction an two shoplifting arrests) may beconsiere aanger toengage incriminal behavior inthe US.

30.Pening immigrant applications toanother country.Ifaniniviual isinthe process ofimmigrating toanother Western country, for example, Canaa, an applies for avisitors visa, hemay beeeme tobeaanger ofremaining inthe US.

The elasticity ofSection214(b)ofthe Immigration an Nationality Act istruly aunique phenomenon inimmigration law. Asnote, many ofthese reasons are not vali reasons, an infact, are specifically prohibite byDepartment ofState regulations. Therefore, itisnecessary tounerstan the consular officer’srationale for the refusal, an when appropriate, challenge it. Failure tooso— silence— isviewe asagreement with the ecision.