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US Visa Refusals under Section 221(G) & 212(A)

US Visa Refusals under Section 221(G) & 212(A)

When applying for a US visa, there are various reasons as to why your application may be refused.

In this guide for US visa applicants, we look at what a visa refusal means under sections 221g and 212a of the Immigration and Nationality Act, and what steps you can take if you receive a refusal notice from USCIS.

 

What is the US Immigration and Nationality Act (INA)?

The Immigration and Nationality Act (INA) contains many of the most important provisions of US immigration law. The INA establishes the various different types of visas available for travel to the USA and what conditions must be met before an applicant can be issued with a particular type of visa.

Many of the situations which can make a visa applicant ineligible for a visa, referred to as visa ineligibilities, are also found in the INA, together with provisions for certain ineligible applicants to apply for what is known as a waiver of their ineligibility.

 

Grounds for visa applications to be refused

After a visa application has been submitted, US law generally requires a visa applicant to be interviewed in person by a consular officer at a US Embassy or Consulate to determine if the applicant is eligible under the INA to receive the category of visa applied for. Once all the relevant information before the consular officer has been reviewed, including the written application and any documentation in support, a visa decision will be made.

The INA sets out many standards under which an application may be refused. For example, an application may be refused because the consular officer does not have in their possession all of the information needed to determine if an applicant is eligible for a visa. This could be because the applicant did not fully complete their application or provide the necessary documentation.

A visa could also be refused because the applicant does not actually qualify for the visa for which they have applied or because the information reviewed indicates that they fall within the scope of one of the various inadmissibility or ineligibility grounds of the law. This is where an applicant’s past or present conduct makes them ineligible for a visa, for example, any drug or other criminal activities, misrepresenting a material fact or committing fraud in order to obtain their visa, or any previous breach of US immigration laws.

In circumstances where a consular officer determines that the applicant is ineligible to receive the visa sought, and the application is denied, the applicant will be told verbally and also notified in writing of the reason for refusal, with the applicable section(s) of law.

 

What is a section 221g refusal under the INA?

When an applicant is refused a visa under section 221g of the INA, this means that, having completed and executed the visa application and any required interview with the consular officer, the applicant has failed to establish eligibility for a visa to the satisfaction of the adjudicating officer as is required under US law, specifically section 291 of the INA.

Section 291 places the burden of proof on the visa applicant to prove that they are eligible to receive the visa sought, while section 221g prohibits the issuance of a visa to any person whose application does not comply with the provisions of the INA or related regulations. As such, for the purposes of US immigration law, a section 221g refusal decision constitutes a denial of a visa on the basis that the applicant has failed to fully complete the visa application and/or provide all the required documentation in support of that application.

 

What is a section 212a refusal under the INA?

Under section 212a of the INA, even where the applicant has fully completed their visa application and provided all their supporting documentation, that application could still be denied for a number of different reasons relating to their conduct.

The range of section 212a visa refusals could include where the applicant:

  • has been convicted of a drug violation — under INA section 212(a)(2)(A)(i)(II)
  • has at least two criminal convictions for which the total sentence of confinement was 5 or more years — under INA section 212(a)(2)(B)
  • did not provide sufficient evidence of funds, or an adequate affidavit of support from their US sponsor in circumstances where one was required, and has been deemed likely to become a public charge in the United States — under INA section 212(a)(4)
  • has wilfully misrepresented a material fact or committed fraud to attempt to receive a visa — under INA section 212(a)(6)(C)(i)
  • has previously remained longer than authorised in the United States as an illegal overstayer — under INA section 212(a)(9)(B)(i).

Importantly, when unlawfully present in the United States for 180 days or longer but less than a year, a person will be ineligible for a visa for 3 years after their departure from the US, or when unlawfully present in the United States for a year or longer, a person will remain ineligible for a visa for a period of 10 years after their departure.

 

Other reasons for a refused US visa application

In addition to sections 221g and 212a of the INA, there are various other reasons as to why an applicant could be found ineligible for a visa, most commonly including where they have failed to establish eligibility for the category of visa being applied for or to overcome the presumption of being an intending immigrant under INA section 214b.

A visa denial under section 214b of the INA applies only to nonimmigrant visa categories, ie; temporary rather than permanent visas, such as visit visas or temporary work visas. As such, if an applicant is refused a visa under section 214b, this means that either they:

  • did not sufficiently demonstrate to the consular officer that they qualify for the nonimmigrant visa category they applied for, and/or
  • did not overcome the presumption of immigrant intent, as required by law, by sufficiently demonstrating that they have strong ties to their home country that will compel them to leave the United States at the end of their authorised stay

 

When it comes to ‘strong ties’ to the applicant’s home country, these refer to the various different aspects of the applicant’s life that bind them to that country. Although strong ties can vary from country to country, city to city and person to person, examples can include the applicant’s job, their home, as well as their relationship with family and friends. While conducting visa interviews, consular officers will look at each application individually, taking into account the applicant’s circumstances, travel plans, financial resources and the strength of any ties outside of the US that will ensure the applicant’s timely departure.

 

If your visa application has been refused – what next?

The steps that can be taken following a visa refusal will all depend on the basis upon which an application has been denied. Below we look at what options are open to an applicant having received a refusal notice under either sections 221g or 212a of the INA. We also look at what can be done if an application has been refused on the basis of section 214b.

 

Ineligibility under 221g of the INA

As a visa denial under section 221g of the INA essentially means that the consular officer did not have all of the information or documentation required to determine if a person is eligible to receive a visa, this means that the applicant is not eligible for the visa at that point in time, but their case is pending further action for one of the following reasons:

the application is incomplete and/or further documentation is required: even though applicants whose application forms or other documentation are incomplete will be technically refused a visa, if further documents are required to complete their case, they will be verbally informed what is needed and how to provide this to the embassy or consulate. They will also be given a letter stating that their application has been denied under 221g and listing which documents that they need to provide;

administrative processing: alternatively, the consular officer may determine that additional information from sources other than the applicant may help to establish an applicant’s eligibility for a visa, such as a background check or employment verification. In such cases, refused visa applications will warrant further administrative processing. The applicant will be informed that further processing of their application is required before another decision can be made regarding their eligibility for the visa sought, and will again be given a letter stating this, together with post-processing instructions.

If an applicant is informed by the consular officer that their case has been refused for administrative processing, their case will remain refused while undergoing such processing, but the applicant will receive another adjudication once this process is complete. As administrative processing times can vary based on the individual circumstances of the case, taking between several weeks or even several months, applicants are strongly advised to apply well in advance of their anticipated travel date to allow for this possibility.

 

Ineligibility under 212a of the INA

If an applicant is ineligible for a visa based on one or more of the laws listed under section 212(a) of the INA, they may be able to apply to the Department of Homeland Security for a waiver, although the visa category sought will determine whether a waiver of ineligibility is available. The consular officer interviewing the applicant will tell them if they may apply for a waiver and will provide detailed instructions on how to apply. Waivers of ineligibility are contained under sections 212d, 212g, 212h and 212i of the INA.

If a visa application has been refused pending processing of a waiver of ineligibility, the estimated current processing time is 10 to 12 weeks, although this could take longer.

 

Ineligibility under 214b of the INA

A refusal, or ineligibility, under section 214b of the INA is for that specific application, such that once a case is closed, the consular officer cannot take any further action and there is no appeal process. 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 their last application, they may reapply for a visa.

To reapply, a new application form must be completed. The applicant must also pay an additional application fee and schedule another interview. Importantly, if an applicant was found to be ineligible under section 214b, unless they can show credible, new and compelling evidence of economic, family and social ties outside of the US, and that their intended activities are consistent with the visa class sought, a different outcome is unlikely.

 

How to avoid a US visa refusal

Some visa ineligibilities are permanent, where every time a person applies for a visa, they will be found ineligible under the same section of law, unless a waiver of that ineligibility is authorised. However, there are certain circumstances in which steps can be taken to help prevent a visa refusal under the INA, including ensuring that an application and any supporting documentation is complete prior to submission, and that sufficient evidence has been provided to satisfy the consular officer that the applicant meets the qualifying requirements for the visa sought and that they will depart the US after any temporary stay.

By seeking expert advice and assistance from an immigration specialist prior to applying for a visa, this will help to avoid a visa refusal and maximise the prospects of a successful outcome first time round, without the need for additional processing or having to re-apply.

 

Need assistance?

To find out what your options might be after your US visa application has been refused, seek advice. The US immigration attorneys at NNU Immigration are specialists in consular practice. We help employers and individuals, guiding them through the visa application process.

If you have a question about a refused visa application, or any other US immigration-related matter, please contact us for advice.

 

US Visa Refusals under Section 221(G) & 212(A) FAQs

What does 221g rejection mean?

A 221g rejection is a refusal of a visa by a consular officer on the basis that the information or the documentation in support of the application is incomplete, although the applicant should be given the chance to rectify this.

 

How long does 221g refusal processing take?

Having submitted a visa application and having been interviewed in person, the visa applicant will usually be told on the day if their visa has been approved, denied or if further administrative processing is required, where processing times can vary.

 

Is 221g considered as denial?

Even though an applicant will typically be given the opportunity to provide any missing documentation if their visa is denied on the basis of section 221g of the Immigration and Nationality Act, a section 221g refusal technically constitutes a denial.

 

What is a section 221g refusal under the INA?

If a visa is refused by a consular officer under section 221g of the Immigration and Nationality Act (INA), this means the applicant has failed to provide all the necessary information or supporting documentation for a decision to be made.

 

Is getting 221g bad?

Receiving a refusal notice under section 221g of the Immigration and Nationality Act — that a visa application has been denied on the basis that the supporting documentation is incomplete — can often easily be rectified by promptly providing the requested documents.

 

What does an immigrant visa refusal under 221g mean?

Section 221g refers to the provision within the Immigration and Nationality Act (INA) prohibiting the issuance of a visa to any person whose application does not comply with the provisions of the INA. This essentially means the application is incomplete.

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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