Amy sits at the witness stand anxiously waiting for the Immigration Judge’s decision on her case. She applied and obtained a visitor (B2) visa in 1997 using falsified documents. Thereafter, Amy married a United States citizen and a petition was filed on her behalf. Instead of an approval of her green card, she was put in removal/deportation proceedings for submitting falsified documents to the U.S. consular officer.
Amy now has two young children and risks being separated from them. The backlog of cases pending with the Immigration Court meant that Amy had to wait five years before she finally came to court for the individual hearing to plead her case. She is suffering from clinical depression and has been taking prescribed medications. At the hearing, Amy testified that she regretted her actions and swore never to lie in any applications in the future.
The Immigration Judge heard several other witnesses and read hundreds of pages of documents submitted to support the Waiver application of Amy. Finally, an oral decision was ready to be rendered. Amy listened attentively. The immigration judge scolded her lengthily and said that it is this type of conduct that makes it difficult for Filipinos to obtain visitor visas. Amy’s action cast a negative perception on other individuals similarly situated and make consular officers view future applicants more suspiciously. Amy’s application was nevertheless approved because of the equities she presented and the convincing proof of extreme hardship to her U.S. citizen spouse and minor children. But the immigration judge’s ‘lecture’ on the effect of misrepresentation cannot be minimized. Such actions do have significant impact on how visa applications are being adjudicated by consular officers these days. Aside from outright misrepresentation, however, there are other negative factors that result in the denial of B2 visa applications.
Intending Immigrant
A visitor visa applicant must prove the” temporary” nature of the trip before the consular officer may issue the visa. When a visa applicant is denied, a piece of paper is handed to the applicant and more often than not, the box “214B” intending immigrant has a check mark on it. This simply means that the applicant has not proven his eligibility, i.e. that the purpose of the travel is only ‘temporary’ in nature.
What is 214(b)? This is the section of the law which provides that every non immigrant visa applicant, with a few exceptions, are presumed to be “an immigrant until he or she establishes to the satisfaction of the consular officer, at the time of application for a visa … that he is entitled to a nonimmigrant status under section 101(a)(15).” Section 101(a)(15)(B) states that a nonimmigrant visitor is an alien “having a residence in a foreign country which he [or she] has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” The burden is on the applicant to overcome the immigrant presumption.
Even prior to the applicant appearing for the interview, the consular officer already has a predisposition on the case if negative factors are present on an individual’s visa application form. These negative factors include: (1) age; (2) length of time in a job; (3) previous time spent in the United States; (4) immigration petition; (5) other travels; (6) having relatives in the United States; or (7) inadequate funds to support the temporary stay in the United States. These factors may be overcome by a sufficient proof of temporary trip abroad and worthwhile reason for traveling like medical treatment, attending to inheritance, participating in a competition, attending burial of immediate relatives.
Relatives in the United States
Oftentimes, having immediate relatives in the United States is a reason for a visa denial. The presumption is that the presence of relatives makes it easier for the applicant to reside permanently in the United States. When the consular officer finds in the application form that the relative is a green card holder or is already in valid immigrant status, there is a possibility of asking how this relative obtained their visas. If there was a change of status from visitor’s visa to another nonimmigrant visa, this will also be a negative factor to the consular officer and will result in denial.
An individual who was petitioned by a U.S. citizen or green card holder relative and is waiting for a priority date to be current is usually hesitant to apply for a visitor visa. There are cases where the reason for denial is the existence of a pending visa petition. It must be noted that there is a written policy for consular officers, contained in the Foreign Affairs Manual, that an applicant with pending petition should not be denied a visitor visa. The denial shall be justified only if there is reason to believe that the applicant’s true intent is to remain in the United States until such time as the immigrant visa becomes available.
Financial Ability to Support Travel
Usually young applicants with no stable job are denied the visas because of their inability to support travel. Unless these young immigrants can show sufficient assets and strong ties to the Philippines, the visa application will be denied.
One often hears about denials of visa for applicants who own real estate in the United States. This should indicate a strong ability to finance the travel since these individuals are stable. On the contrary, however, the consular officer may instead view the possession of a real estate as increasing the likelihood that this applicant will overstay in the United States.
The existence or non-existence of assets in the U.S., existence or non-existence of pending petitions, etc., are double edged swords which may be boon or bane for the visa applicant. This is why Amy’s earlier conduct on consular officers’ perception can have great impact on the denial or approval of future visitor visa applications.
It is at the interview that the applicant for the visa is provided an opportunity to overcome the immigrant presumption and prove that the intended trip is temporary. Denials may be avoided by being prepared for the interview and being very specific in articulating one’s “temporary” purpose in obtaining the visa. It is important to remember, therefore, that the four or five minute interview is your one opportunity to show that you do not present an “overstay” profile and debunk any preconceived notion that you will violate the proscriptions of your visa.
(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)
