DOS Cable on 214(b) : Presumption of Immigrant Intent
Posted Apr 29, 2005
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The U.S. Department of State (DOS) recently released a cable issued in December 2004 that clarifies certain issues regarding Section 214(b) of the Immigration and Nationality Act (INA). In particular, the DOS Cable, directed to all diplomatic and consular posts as well as other recipients, specifies that a denial under §214(b) is not equivalent to a ground of inadmissibility in future visa applications, including immigrant visa applications. Inadmissibility is essentially ineligibility for admission to the United States. A visa denial under Section 214(b) is simply that the person was not able to overcome, to the satisfaction of the consular officer, the presumption of law that every nonimmigrant is presumed to be an intending immigrant, or otherwise did not establish eligibility for the particular category.
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Background of Section 214(b) of INA
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The most frequent reason for nonimmigrant visa denials at the consulates is INA §214(b). This is usually thought of in terms of "immigrant intent" denials. That is, §214(b) specifies that all foreign nationals seeking entry on nonimmigrant status, other than persons seeking H1B, H1C, H-4, L-1, L-2, and V visa categories, are presumed to be intending immigrants. Under this provision, the Consular Officer must be satisfied that the visa applicant is entitled to the requested nonimmigrant status and has overcome the automatic presumption under law that s/he intends to settle permanently in the United States.
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Applicant's Failure to Establish Ties - Not Tantamount to Inadmissibility
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The Cable starts by spelling out that §214(b) cannot be simplified to mean that an applicant must have ties to the home country or the intent to return to the home country. It also notes that a person who is refused under this section has not been found legally inadmissible. There are separate provisions of law for inadmissibility findings.
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The Cable points out that §214(b) requires the applicant to meet a burden of proof establishing that s/he is entitled to a nonimmigrant status. If the applicant fails to meet that burden, then the nonimmigrant visa must be denied. As noted, the nonimmigrant intent requirement of this entitlement does not apply to the H, L, and V visa categories. As is explained below, the need for ties is not the only possible manner in which to fail to establish eligibility for a particular nonimmigrant category.
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What is Inadmissibility?
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The Cable reminds the consulates that the grounds of inadmissibility are contained in a separate provision of the law and that they apply to both immigrant and nonimmigrant visa applications. Most have a corresponding basis for removal of the individual from the U.S., if the person is, in fact, in the United States. Grounds of inadmissibility include fraud, unlawful presence, health-related grounds, certain criminal grounds, security grounds, and other such grounds for preventing admission into the United States.
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As opposed to this blanket bar from the U.S., §214(b) applies when a person simply has not established that s/he is entitled to a particular nonimmigrant classification. This does not mean that there is any bar to entry in either an immigrant classification or a nonimmigrant classification where §214(b) does not apply.
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Standards for Overcoming 214(b) Refusals
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Section 214(b), in addition to the immigrant intent provisions, incorporates the specific standards for each nonimmigrant category. Hence the applicants have to prove that they are eligible for the particular category, separate and apart from the nonimmigrant intent provisions.
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Accordingly, a student who does not have sufficient funds to cover required expenses will be denied a student visa under §214(b). Similarly, a treaty investor who has not made the required investment could be denied the investor visa under 214(b). Quite commonly applicants for B-1/B-2 visitors' visas, without foreign residences that they do not intend to abandon, are denied under §214(b). This last basis for denial is the most common for visitors and students. Thus, §214(b) is often thought of only in terms of ties to the home country, even though it covers all general nonimmigrant category requirements.
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Categories not specifying nonimmigrant intent : A, C, D, G, I, K, N, O-1, R, S, T, and U. The Cable reminds the consulates that these nonimmigrant categories do not have any nonimmigrant intent provisions within their definitions. That is, they do not contain provisions stating that the individual must have an domicile abroad to which s/he intends to return after a temporary stay in the U.S.
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Categories specifically requiring nonimmigrant intent : visa categories like the B, E, F, J, M, O-2, P, Q, and TN.
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Categories that enjoy dual intent : H1B, H1C, H-4, L-1, L-2, and V categories are exempted from the immigrant intent provisions of §214(b). These categories enjoy the "dual intent" benefits available under the Immigration Act of 1990.
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214(b) is Not a Substitute for Inadmissibility
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The consulates are advised not to confuse or substitute §214(b) for the separately-listed grounds of inadmissibility. This is important because it is easier to overcome §214(b). One who is denied under §214(b) can overcome this in a later application if the consular officer can be convinced that the individual will comply with the terms of the particular nonimmigrant category. It could be that the denial under §214(b) is appropriate in one category, but not in another category for which the person applies at a later time.
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Conversely, an inadmissibility finding remains in place no matter what type of visa application is made. This can only be overcome by applying for and receiving a waiver, whether a nonimmigrant wavier or an immigrant waiver, if one is available for the particular ground of inadmissibility. Not all inadmissibility grounds can be waived so as to allow the person admission into the United States.
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What if there a Concern about Terrorism?
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The Cable explores whether §214(b) is an anti-terrorism tool. It clarifies that §214(b) is designed to separate genuine nonimmigrant visa applicants from presumed immigrant applicants. It should not be confused with inadmissibility grounds that include terrorist provisions. The Cable notes that consular officers sometimes identify individuals who appear to be engaged in deception and that this can mean the individual will not meet the burden of proof with respect to satisfying the consular officer that the person will comply with all nonimmigrant requirements. These applicants can be refused under §214(b). If the information before the officer raises suspicion about terrorist behavior, however, then the officer should hold the decision and submit a security advisory opinion (SAO) request, rather than simply deny the applicant under §214(b). This will freeze eligibility for any visa until the SAO is received. It also helps to centralize information and could result in an inadmissibility finding that would prevent the applicant from gaining entry in any category, unlike a mere §214(b) denial.
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Conclusion
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In conclusion, we at The Law Office of Sheela Murthy wish to share with MurthyDotCom and MurthyBulletin readers favorable information about this Cable from Stephen K. Fischel, Director, Office of Legislation, Regulations and Advisory Assistance, U.S. Department of State, at the April 11, 2005, AILA conference in Washington, D.C. Mr. Fischel opined that consular officers should not deny the visas for dependent spouses and family members, like F-2s or J-2s, under §214(b) for lack of ties to their home countries if the F-1 or J-1 primary spouses were in the United States and already overcame the 214(b) presumption to the satisfaction of the consular officers by virtue of the grant of their F-1 or J-1 visas. This favorable legal interpretation from Mr. Fischel should help many family members to reunite with the principal who is studying or working in the U.S. and remove concerns about possible 214(b) denials.