A boilerplate letter is usually issued to an applicant who is refused a visitor visa. The most common one is the denial based on Section 214(b). What exactly is this 214(b) and how can one avoid getting this letter of refusal?
Lisa has been applying for a visitor’s visa for two years now and has been refused the visa each time she applies. In her last interview at the U.S. Embassy, she was asked about her sister, Emma, who entered the United States initially on a visitor visa and later adjusted to lawful permanent resident. Lisa explained that Emma met her husband while traveling temporarily in California, and decided to get married. They now have two children together. After providing an explanation, the consular officer handed Lisa another letter indicating a denial based on section 214(b). She is wondering if she can overcome the reason for the denial.
INA Section 214(b)
Section 214(b) is a provision of law found in the Immigration and Nationality Act and provides that a non-immigrant visa applicant is presumed to be an immigrant until he establishes to the satisfaction of the consular officer that he is eligible for the visa under section 101(a)(15)”. In the latter provision, it enumerates the different non-immigrant visas and their eligibility requirements. For the visitor visa to be issued, there must be proof of a residence which the applicant has no intention of abandoning and the purpose of the trip should be temporary in nature.
The burden of proving eligibility is always on the applicant. The burden is heavier on the part of the visa applicant, because there is already a presumption of immigrant intent until the applicant submits information that will overcome the presumption. The only opportunity allowed for the applicant to show proof of eligibility is through the DS-160 and during the interview process.
A properly filled DS-160 must be reviewed extensively before it is submitted. The purpose of the trip must be clearly written to indicate a legitimate purpose and temporary nature of travel to the United States. The applicant must also show sufficient funds to support himself during the temporary trip. During the interview, the applicant must convince the consular officer of the genuineness of his intentions. This is the critical part of the application process and a determining point on whether a 214(b) finding will be made. It is important that the applicant be conscious about his conduct and demeanor during the interview process. He should be careful in answering questions because a simple question may go to weighing the credibility and integrity of the applicant. Critical information about a relative may trigger a denial based on 214(b). This is what happened to Lisa. She may have been truthful in her intention but she was still denied. It was the information about her sister who overstayed and adjusted status that that affected her credibility.
It does not seem fair that the actions of Lisa’s sister are imputed to her. But the consular officers exercises broad discretionary power and there is consular non-reviewability. The best approach is for Lisa to re-apply again, addressing the concerns of the consular officer; build up her efforts in proving the genuineness of her intentions to travel. You can be stubbornly persistent as long as your intentions are legitimate.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw or at 02-7211963)
