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Received a 214b Refusal or Denial? Next Steps

Received a 214b Refusal or Denial? Next Steps

Amongst the most common reasons for having an application for a US visa declined is an applicant failing to demonstrate to the consular officer that they qualify for the nonimmigrant visa category sought or failing to overcome the presumption of being an intending immigrant under section 214b of the Immigration and Nationality Act (INA).

The following article looks at what section 214b of the INA says, together with what this means for your visa application and the options available to you in these circumstances, including whether you can appeal or re-apply following a 214b refusal. We also look at some of the other most common refusal reasons, including section 221g and 212a refusals.

 

What is a 214b refusal?

In many cases, a 214b refusal will refer to the decision of a consular officer to decline a visa application for a nonimmigrant visa on the basis that the applicant has failed to satisfy the officer deciding their application that they will leave the US at the end of their stay.

A visa refusal under section 214b of the INA applies only to nonimmigrant visa categories, where a nonimmigrant visa is a temporary visa, allowing overseas nationals to come to the United States for short periods only and for specific purposes, such as for tourism, or to undertake a course of study or short-term employment. Under section 214b, this provides that every applicant shall be presumed to be an immigrant — so someone looking to permanently settle in the US — unless they establish to the satisfaction of the consular officer, at the time of application for a visa, that they are entitled to nonimmigrant status.

In this way, US law places the burden on nonimmigrant visa applicants to show that they are not intending immigrants, ie; to prove they will leave the US on expiry of their visa.

Section 214(b) of the INA also requires that the applicant qualify for the visa applied for and will act in accordance with its terms during their time in the United States.

 

What does a 214b refusal mean for your US visa application?

A section 214b refusal essentially means that an applicant has failed to:

  • sufficiently demonstrate to the consular officer, by way of evidence or in response to any questions asked, that they qualify for the nonimmigrant visa category sought, and/or;
  • overcome the presumption of immigrant intent, as required under US law, by sufficiently demonstrating to the officer that they have strong ties to their home country that will compel them to leave the USA at the end of their authorised nonimmigrant stay.

Under section 214b of the INA, you will be presumed to be an intending immigrant, unless you can credibly demonstrate, to the consular officer’s satisfaction, that your economic, family and social ties outside the US are strong enough that you will not illegally overstay, and that your intended activities in the US will be consistent with your visa status.

For nonimmigrant B-1 or B-2 visitor visa applicants, this means that you must show that you have an overseas residence that you have no intention of abandoning and are only temporarily visiting the US for either business or pleasure. As a nonimmigrant F-1 student visa applicant, you will have the additional burden of showing you have the qualifications necessary to pursue your course of study, together with the intent to return to your home country upon the completion of your studies. Equally, as a nonimmigrant employment visa applicant, you must show that you have the qualifications for the visa for which you are applying, although applicants for H-1B (speciality occupation) visas and L-1 (intracompany transferee) visas, along with any spouse and dependent children seeking derivative status under these nonimmigrant routes, are excluded from the section 214b requirement.

 

Common grounds for 214b refusals

There are a number of reasons why a consular officer may refuse your nonimmigrant visa application on the basis of section 214b of the INA, although you may be given a standard rejection letter, citing either a failure to meet the standard for issuance of the visa and/or lack of strong ties to your home country. The actual reason for the refusal can vary greatly where, in some cases, this may not even be a legitimate reason under US law. The consular officer may simply be unhappy with you as an applicant or some of your answers, where section 214b provides a permissible blanket basis upon which to refuse your application.

Legitimate grounds for a 214b refusal can include:

  • Failure to meet the criteria for issuance of a visa: the nonimmigrant requirements for a work visa for example can be especially technical and difficult to fulfil, where the applicant’s credentials may be deemed unsuitable for a particular category of visa.
  • Limited ties to home country: where the applicant is unable to show strong ties to their home country, the application is again likely to fail. This can include if they are young, unemployed or have a new or low income job, no children, unmarried, live in a rural areas, and/or own does not own their own home or any other assets in their country.
  • Interview problems: the importance of the consular interview cannot be underestimated, where the way in which an applicant conducts themself and how they present can be key to explaining a refusal. This means that any hesitation or nervousness in answering questions, discrepancies in answers given, confused or insincere facial expressions, lack of eye contact or any other behaviour indicative of dishonesty will all weigh in the balance in assessing an applicant’s intentions, credibility and eligibility.

However, other common reasons behind a section 214b refusal could include where the applicant is from a country in which many visa-holders do not return home; if the general economic or political situation in the applicant’s home country is unstable; where the applicant has previously applied to extend their stay or for a change of status while in the US; where other relatives have previously emigrated to the US; where the applicant owns real estate in the US; and where they have previously been denied an immigrant petition or have a pending immigrant application in another country, to name but a few.

A 214b refusal could also be issued where the consular officer has misinterpreted the law and/or facts, where it is not uncommon for a legitimate and qualifying nonimmigrant applicant to be wrongly denied a visa on the basis of this or one of the other reasons above.

 

What are your options after a 214b refusal?

Following a section 214b refusal, the case will be closed and the consular officer cannot take any further action. As such, for those applicants who feel that there is additional information that should be considered relating to the visa decision, or there are significant changes in their circumstances since the last application, they would need to reapply.

 

Can you appeal a 214b refusal?

There is no appeal process in the context of a section 214b refusal. This means that, even if the consular officer has made a mistake or you have additional evidence sufficient to prove you qualify for a visa and intend to depart the US afterwards, you will still need to re-apply.

 

Can you reapply after a 214b refusal?

It is possible to re-apply for a nonimmigrant visa following a section 214b refusal. However, in some cases, depending on the reason for the refusal, or the suspected motive behind the reasons cited in your refusal letter, it can be better to wait before re-applying. In this way, it may be much easier to persuade a consular officer that your circumstances have changed.

On re-application, unless you are able to show credible, new and compelling evidence of economic, family and social ties outside of the US, and that your intended activities are consistent with the visa you are applying for, a different outcome is unlikely.

 

How to avoid a 214b refusal

There are certain circumstances in which steps can be taken to help prevent a 214b refusal, including the provision of sufficient evidence from the outset to satisfy the consular officer that you will depart the US after any temporary stay. This means that you must be able to provide credible evidence to show that you have strong ties to your home country.

Strong ties can vary from country to country and applicant to applicant, although common examples can include your job, your home, and/or your relationships with friends and family. While conducting the visa interview, the consular officer will carefully consider your application, taking into account a whole host of matters including your individual circumstances, travel plans and financial resources, as well as your ties outside of the US that will ensure your departure after a temporary stay. As such, if there is anything within your particular set of circumstances that may raise a red flag for the consular officer, you will need to provide sufficient evidence to reassure them of your genuine intentions.

By seeking expert advice from an immigration specialist prior to applying for a visa, not least to help with providing persuasive evidence of strong ties to your home country, this can help to avoid any 214b refusal or refusal on any other grounds under the INA.

 

Other grounds for US visa refusals

When applying for a US visa, there are various reasons as to why that visa may be refused, including but not limited to section 214b. The INA contains a number of other provisions which may provide the basis for a refusal decision, including sections 221g or 212a.

A section 221g refusal is where a consular officer did not have all of the information or documentation required to determine if the applicant is eligible to receive a visa. In contrast, a section 212a refusal is where the applicant has submitted a complete application, with the necessary supporting documentation, but their visa is refused for a reason relating to either their past or previous conduct. This could include, for example, where they have a serious criminal history or a history of immigration breaches. It could also be if they have been dishonest when applying for their visa or they have been unable to prove sufficient evidence of funds or financial sponsorship to be able to come to the USA.

In the case of a section 221g refusal, even though the application for a visa has technically been refused, the applicant should be given the opportunity to provide the necessary information or documentation. They will also be given a year within which to do this. At the conclusion of their interview with a consular officer, they will be advised what action they need to take for their application to be re-adjudicated. They will also be given a letter setting out the basis for the initial refusal under 221g and what they need to provide.

In some instances, the consular officer may decide that additional information from sources other than the applicant may be needed to help establish an applicant’s eligibility for a visa, such as employment verification or a background check. In these cases, the application will need to undergo what is known as administrative processing, where the applicant will again be advised of this, both verbally and in writing, with instructions on what to do next.

In either scenario, the case will be classed as pending further action, remaining refused in the interim, unless and until the applicant provides the requested information or documentation, or any administrative processing is complete. This could take anything from several weeks to several months, depending on the circumstances of the case.

In the case of a section 212a refusal, depending on the visa category sought, the applicant may be able to apply to the Department of Homeland Security for a waiver to overcome their visa ineligibility. This is known as a ‘waiver of ineligibility’. The consular officer interviewing the applicant and dealing with their visa application will tell them if they can apply for a waiver, providing detailed instructions on the procedure to do this.

Waivers of ineligibility can be found under sections 212d, 212g, 212h and 212i of the INA. Importantly, if a visa has been refused pending processing of a waiver of ineligibility, the estimated current processing time is 10 to 12 weeks, although this can often take longer.

 

214(b) refusals FAQs

What is a 214b refusal?

A 214b refusal refers to a consular officer’s decision under section 214b of the Immigration and Nationality Act to decline a visa application on the basis that the applicant has failed to overcome the presumption of being an intending immigrant.

 

How do I overcome a 214b visa rejection?

Following a 214b visa rejection, the applicant will need to re-apply. They may also need to establish clearer ties with their home country before re-applying to satisfy a consular officer they will depart the US following a temporary stay.

 

How do I reapply after 214b rejection?

If a visa application is refused on the basis of section 214b of the Immigration and Nationality Act, the applicant will need to re-apply, providing clear evidence of their eligibility for a temporary visa and intent to depart the US.

 

What is the section 214b in US visa?

Section 214b is the provision within the Immigration and Nationality Act that allows a consular officer to refuse a visa application if they are not satisfied that an applicant qualifies or will voluntarily leave the US when their visa expires.

This article does not constitute direct legal advice and is for informational purposes only.

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.

Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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