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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?

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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.

A previous drug conviction is preventing me from entering the United States. I need to take College final exams or I risk losing an entire semester of credit.

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Question:

Dear SRW Border lawyers,

I entered the United States in F-1 status to attend college in California. During my first semester I was arrested and charged with possession of a controlled substance. The controlled substance was not mine, but since it was found in my car I was charged with possessing it.  During the criminal proceeding, I was represented by a public defender who was unaware of immigration law and how a criminal conviction would affect my immigration status. In fact, I was told on several occasions that if I were to pled guilty to a misdemeanor the conviction would not affect my immigration status. Taking the advice of my lawyer, I pled guilty to a misdemeanor. I was under the impression that entering a plea and paying a small fine would put an end to my situation.

Several months later, I returned home (Sweden) during Christmas break. When I tried to return to the United States to continue my classes, Customs and Border Protection (“CBP”) denied me entry due to my conviction. After I explained the situation surrounding my conviction CBP paroled me into the country for one (1) year. I finished up my spring semester and then returned home to Sweden again for summer vacation. Unfortunately, I did not realize that my parole was only a one-time entry. So, when I tried to enter the United States again to begin the new school year, I was denied because of my conviction.

My school has been very understanding with my situation, but I was recently informed by school administrators that I must take my final exams in-person, or I will have to withdraw from all of my classes and lose an entire semester worth of class credit.  How can I enter the United States? I do not want to lose an entire semester of classes.

Answer:

Thank you for contacting the SRW Border Team. As you already know, you are inadmissible due to your criminal conviction. Pursuant to INA § 212(a)(2)(A)(II), “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance is inadmissible.

That being said, and with only a limited understanding of the facts of your case, you may have some options available to return to the United States to finish your schooling.

Parole

Despite you inadmissibility, you may be able to parole into the country for a period of time long enough to take your exams. Parole is a legal fiction that CBP uses to allow individuals to enter the United States for a specific purpose and period of time without actually “admitting” them. Parole is generally used in situations where there is a strong humanitarian or business need, however, an experienced immigration lawyer may be able to develop and present a persuasive case to CBP to allow for the discretionary authorization of parole. You should also be aware that your parole will more than likely be a one-time entry only, which means that once you enter the country, you will not be able to return if you depart prior to the expiration of your parole.

Vacate Criminal Conviction

While we only have the information you provided in your email, you may be able to vacate your criminal conviction. Based on your email, it appears that throughout the criminal proceeding you were not properly apprised of the immigration consequences of your plea agreement. Vacating the conviction would essentially clear your record and remove your inadmissibility. While our office does not handle criminal matters, we have a network of experienced criminal lawyers that we will put you in contact with and then work closely with that lawyer to resolve your immigration matter.

If you are not able to vacate the criminal conviction, you will likely need to apply for a non-immigrant waiver through the U.S. Consulate in Sweden, in conjunction with your application for a new F-1 visa.  For more information about this non-immigrant waiver process through the Consulate, please click here. 

We hope the above information was helpful. We look forward to speaking with you through our detailed consultation process and helping you through this stressful time.

Are We Treating Our Ally Canada as a True Friend?

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By:  William Z. Reich, Esq.

As we approach Election Day, I believe that we should be asking ourselves – From an immigration perspective, are we treating our ally from the north, Canada, with the kind of sensitivity and consideration that is due to a true friend?

Canada, our greatest trading partner, shares our democratic approach and the associated freedoms and deep rooted values of liberty - freedom of speech, association, religion - and acceptance of a diverse population of immigrants.

These shared values have been an important reason why Canada has been supportive of our international initiatives to defend the principals of democracy and peace throughout the world.  Sometimes, Canada frequently serves as our ears and spokesperson with countries with which we have no relations.  If you recall, Canada has also come to our aid in the past such as helping us during the hostage crisis in the 80’s by helping smuggle out some of the hostages from Iran.  

With the above historical background in mind, it is important to consider the question “How are we treating Canada and thus its citizens, from an immigration perspective?”

As you may be aware, Canada is one of our partners under the North American Free Trade Agreement (NAFTA) and I have already published a number of other blog postings discussing the obstacles that CBP officers sometimes unnecessarily impose on qualified Canadians who are attempting to engage in employment with U.S. employers [TN status] – which serves to defeat the very transparent manner that was foreseen and provided for under NAFTA.

In this message I would like to focus on the mistreatment of our Canadian neighbors and partners who, for minor immigration lapses (often born out of ignorance rather than an intent to violate our U.S. immigration laws), receive disproportional punishment which can sometimes carry lifetime consequences not only for them, but for their U.S. citizen family members.  

There is a fundamental principle in law that punishment or retaliation for an infraction must be proportionate to the infraction itself.  Permit me to review a couple of examples with you to see if you believe this principle is being adhered to in dealing with our Canadian neighbor:

Ex 1.   A young couple, one a Canadian citizen and one a U.S. citizen, is planning to get married in the U.S. so that their family and friends can attend this joyous event.  They set a date, rented the hall and made all of the arrangements. They also investigate the necessary immigration requirements for the Canadian citizen to become a permanent resident of the U.S. and began the process.  However, they did not factor in any unforeseen delays with the immigration process.  When the time came for their wedding, before the Canadian citizen was able to finish the immigrant visa process, the couple, together with other family members, crossed the border into the U.S. and told CBP officer’s that they were going to spend a long weekend in the United States (which was true). However, after searching the vehicle and finding evidence of the wedding event, CBP official’s charge the Canadian citizen bride and assorted Canadian citizen family members with fraud, which carries a lifetime ban.

Looking at it from the CBP officials’ lens, there was a misrepresentation and the charge maybe could be legally justified - however, were there any security issues implicated here? Had these folks been warned about the seriousness of the misrepresentation? Had they been given the opportunity to withdraw their application for admission at any time? Could they have been paroled in for the wedding and be educated on the consequences and seriousness of misrepresentations at the border without stigmatizing them for life with a fraud ban?

This is not a hypothetical example. Our office has represented a number of young couples in this very quagmire.

Ex 2.  Another common scenario is a Canadian citizen enters the U.S. to work a summer job in New York City.  Canadian citizen meets a U.S. citizen and begins dating. As the summer internship winds down, the Canadian citizen would like to remain in the United States to further explore that relationship. Realizing that the Canadian citizen has no work authorization, the Canadian citizen does not attempt to gain employment.  However, the Canadian citizen does extend the apartment lease and continues to remain in the United States (arguably, as an undocumented individual).

The Canadian citizen then goes back to visit family in Canada and upon trying to return to the U.S. to her apartment, friends and a pet that she left behind, she misstates her reason for entering the United States and ends up being barred for five years by the issuance by an Expedited Order of Removal.

Was there another way that CBP could have handled this set of facts? Could the Canadian citizen have been permitted to withdraw her application for her entry? Could she have been admitted for a short period of time to collect her belongings and have been explained what the proper parameters of a visit are?

The point being made is that there are other less arduous tactics that CBP officers can sometimes utilize that would not impose the requirements of waivers for future entries and otherwise blemish the immigration record of an individual who has likely never had any problems crossing the border before.

Interestingly, the CBP Inspectors Field Manual specifically speaks to other less distressing practices that could be utilized (such as allowing the applicant to withdraw their application for admission), but CBP officers continue to harshly penalize Canadian applicants in “soft” types of border incidents where a gentler approach would’ve been more appropriate.

The examples above highlight the ‘overreaction’ of CBP officers in using the expedited removal process -which was originally put in place by Congress to deter applicants who were flooding the ports of entry with fraudulent documents.  For those of you not familiar with the expedited order process, this process allows CBP Officers at the border to order the removal of individuals for fraud (a lifetime bar) or as an intending immigrant (five year bar), without a hearing before an Immigration judge or an ability to appeal such an order.

Given that none of the examples above implicated the security or safety of America, one would ask why are we doing this?  As we approach election time, we should listen very carefully to the candidates because the entire policy of immigration law will dictate the way we calibrate our immigration process going forward.