I have been denied a B1/B2 visa on two occasions pursuant to INA § 214(b). How can I overcome INA § 214(b), so that I can attend my friend's wedding in the United States?

Question:

Dear SRW Border Lawyers,

From 2009 to 2010, I was in the United States on a J1 visa. I returned to my home country when the internship ended. I returned to the United States again with another J1 visa from 2011-2012. I returned to my home country in June of 2012 and graduated from college.

My best friend lives in the United States and she is planning on being married in 2013. In August of 2012, I applied for a B1/B2 visitor visa to help her organize her wedding and to travel the United States for a short time (while I was in the United States on my J1 visas, I did not get an opportunity to travel). At the visa interview the consular officer denied my application due to INA § 214(b). I was told to try again at another time once I was able to provide evidence of stronger ties to my home country.

A few weeks later, my sister wanted to go to New York City and asked me to go with her. I applied for another visa, but this time I brought more evidence of stronger ties. I was denied again pursuant to INA § 214(b).

While I do not much care about visiting New York City, I do not want to miss my best friend’s wedding late next year. I was really put off about ever applying for another visa again from this one Consul, and I am hoping that whatever was written in my file is not so severe that it would affect my ability to get a visa to visit the United States, especially as I have not done anything illegal.  

What advice would you give on how I can strengthen my ties to my home country so that I can travel to the United States for my friend’s wedding?

Answer:

Thank you for your question. You indicate in your email that you were denied pursuant to INA § 214(b). INA § 214(b) states:

“Every alien…shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) .”

In essence, INA § 214(b) is a presumption that all visa applicants are intending immigrants, unless they are able to establish to the satisfaction of the consular officer or immigration officer that they are entitled to the nonimmigrant visa that they are applying for. The 214(b) analysis is two-part: (1) can the visa applicant prove that they have strong enough ties to their home county, and (2) is the applicant eligible for the visa that they are applying for.

Based on your email, it appears that you were unable to establish strong ties to your home country. Evidence of “strong ties” can be documented in various ways. Some of the more common evidence submitted with a visa application include: mortgages, leases, utility bills (gas, electric, cable, internet), employment letters, and insurances (home, car). Thus, if you are unable to provide such information at this time, you will want to take steps to begin to develop those ties. For example, begin renting an apartment, or put utilities in your name. Young adults are at a disadvantage when it comes to proving ties, since they most likely have not established themselves (i.e. purchased a home, been employed for a considerable amount of time by the same employer).

In addition, from the information you have provided in your question, I also believe that your previous time in the United States in J1 status was working against your B-1/B-2 visa applications. For example, prior to your first visa interview, you had just returned to your home county after spending a significant amount of time in the United States. Your second attempt, which was shortly after your first, still did not allow for a significant passage of time since returning to your home country. Thus, based on your presumptive lack of strong ties to your home county and your previous time in the United States in J-1 status, the Consular Officer was not persuaded that you would return home following your visit to the United States and denied your application.

Simply put, you will likely have to wait before applying for a visitor visa. In the meantime, however, you should begin to develop ties to your home country so you can overcome INA § 214(b). Once you have developed significant ties, please contact our office so that we can further assist you with the preparation of your visa application.

Applicants Needing Non-Immigrant Waivers Are Experiencing Unusual Delays

Nonimmigrant visa applicants who must also submit a nonimmigrant waiver in conjunction with their visa application, must first convince the Consulate that they are deserving of a waiver. Thus, an applicant who is inadmissible to enter the U.S. will submit a package consisting of a visa application (e.g. B1/B2 visa) and a waiver application to the Consulate. If after reviewing the waiver application the Consulate agrees to make a favorable recommendation, the Consulate will then forward the waiver application to the Admissibility Review Office ("ARO") to be adjudicated. 

In determining whether or not to forward a waiver application to the ARO, consular officers conduct a preliminary review of the application package. First, consular officials ensure that the applicant meets certain basic conditions, which include that the applicant: (1) is not inadmissible as an intending immigrant; (2) is not inadmissible under certain security grounds; (3) is not seeking a waiver of nonimmigrant documentary requirements; and (4) is qualified for the nonimmigrant visa he or she is seeking to obtain. Second, consular officers are advised to consider the following factors outlined by the Board of Immigration Appeals ("BIA") in Matter of Hranka: (1) the risk of harm if the applicant is admitted; (2) the seriousness of the applicant's prior immigration or criminal law violations; and (3) the nature of the applicant's reasons for wishing to enter the U.S. If after reviewing the application consular officers are satisfied with the waiver application, the application will be forwarded, together with a favorable recommendation, to the ARO, for final adjudication. 

Recently, the ARO informed all consulates that they are experiencing unusual backlogs. In previous years, the process took only a couple of weeks, but current processing times may take several months. Our office has heard from several frustrated clients whose waiver processing times have now gone beyond two months. Unfortunately, there is nothing that can be done to speed up the process; however, in urgent situations, there is a procedure called parole that may be granted to allow an applicant to enter the U.S. 

If you are interested in more information about nonimmigrant waivers or parole, please contact our office to set up a consultation.