Sindell Law Offices E-Min Newsletter (Vol. 12) - English Article #48

   Imagine, you have been in the United States for 5 years as a student of English and now have finally been accepted to an undergraduate program. You return to the consulate in Tokyo and ask for a visa to attend your new program. The consular officer refuses to issue the visa, as per 214(b). Section 214(b) of the Immigration and Nationality Act is the most commonly used provisions to deny certain non-immigrant visa applications.


Section 214(b) has direct applicability to most non-immigrant visa cases.  It can be simplified to mean that applicants must have "ties" or must intend to return home.  Oftentimes, F-1 visas are refused on this basis. A refusal under section 214(b) is different from a finding of inadmissibility. Someone who is refused under section 214(b), can reapply if they can show sufficient ties to their home country.


Please note that a recent State Department cable further defined 214(b) and its proper use to consular officers. In relevant parts, it said,

• H-1, L, and V visas are excluded from the presumption established in 214(b)
• There are no immigrant intent provisions triggering 214(b) in the A, C, D, G, I, K, N, O-1, R, S, T, and U categories
• 214(b) should not be used as or equated with the 212(a) ground of inadmissibility which relates to terrorism

The memo went on to state

Consular officers spend a significant portion of their time interpreting, applying, and explaining section 214(b) of the immigration and nationality act. Thus, it deserves close reading and careful interpretation. 


What does 214(b) mean?  With limited exceptions, 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 nonimmigrant visa categories. The burden of proof is on the applicant.  If a non-immigrant visa applicant does not meet this burden of proof to the satisfaction of the consular officer, then by law the alien is considered to be an applicant for immigrant status and should not receive a nonimmigrant visa.


The fact that an alien is denied an NIV under 214(b) does not mean that the alien is inadmissible to the United States.  The same NIV applicant who is denied under 214(b) may, for example, be approvable for an immigrant visa.


What are the standards for a 214(b) refusal


For example, failure to possess sufficient funds to defray educational expenses results in a 214(b) denial of student visa.  Failure to make substantial investment results in a 214(b) denial of a treaty investor visa.  Failure to possess the intent not to abandon a foreign residence results in denial of a B visa.


The majority of NIV applications are for visitor or student visas.  Most denials are based on failure to meet the residence abroad requirement. Consequently, 214(b) refusals have been equated by some with immigrant intent denials


INA 214(b) requires the nonimmigrant visa applicant to establish "to the satisfaction of the consular officer~ that he is entitled to a nonimmigrant status. This means that every applicant subject to 214(b) must provide to the consular officer a credible showing that the intended activities are consistent with the claimed non-immigrant status.  Proper adjudication requires the consular officer to assess the credibility of the applicant and his/her evidence submitted to support the application.  If the applicant meets the particular statutory/regulatory requirements of the NIV sought and the consular officer is satisfied that the applicant will lawfully engage in the activities consistent with the particular NIV status, and there are no inadmissibilities, then the visa may be approved.


It is important to note that Congress has expressly excluded H-1, L, and V visas from the statutory presumption established in 214(b).


The 214(b) basis of refusal may be overcome if the applicant demonstrates to the satisfaction of the consular officer that the applicant lawfully meets and will abide by all the requirements of the particular nonimmigrant visa classification. 


Most consular officers spend more time applying section 214(b) than on any other section of law.

In sum, we believe that 214(b) is bad policy for the US. One of the major attractions of the H-1b category is that it is exempted from 214(b). The U.S. consular officers' primary duty in the post-9/11 world should be anti-terrorism, not primarily guardians of the American labor market and we hope that this memo will assist our consular officers in focusing on the relevant factors for 214(b) denials