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Article: INA 214(b) Refusals: 10 Years After. By Liam Schwartz

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  • Article: INA 214(b) Refusals: 10 Years After. By Liam Schwartz

    INA 214(b) Refusals: 10 Years After

    by


    Ten years ago this month, the Department of State sent a remarkable cable to consular posts regarding INA 214(b). Written in clear, understandable terms, State 274068 counsels consular officers on the proper interpretation of the provisions of INA section 214(b). The guidance and wisdom set forth in this cable remain as relevant today as ever.

    In tribute to the drafters of State 274068, we reproduce the cable’s substantive provisions in full, below.

    281655Z DEC 04

    UNCLAS STATE 274068

    SUBJECT: INA 214(B), BASIS OF REFUSAL NOT EQUIVALENT TO INADMISSIBILITY OR IMMIGRANT INTENT

    1. M/R (SEP) cleared this telegram.

    2. Summary: This cable reviews proper interpretation of section 214(b) of the Immigration and Nationality Act. Section 214(b) has direct applicability to most non- immigrant visa cases. It cannot be simplified to mean only that applicants must have "ties" or must intend to return home. A refusal under section 214(b) is different from a 212(a) refusal, in that the former does not constitute a finding of inadmissibility. End summary.

    3. Consular officers spend a significant portion of their time interpreting, applying, and explaining section 214(b) of the immigration and nationality act. Thus, it deserves close reading and careful interpretation. Through this cable, we would like to clear up any possible misunderstandings about 214(b) and its appropriate application. Posts are asked to review carefully this cable with all consular officers.

    4. What does the statute actually say? The first sentence of INA 214(b) states that: "every alien (other than a nonimmigrant described in subparagraph (l) or (v) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) 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)."

    5. What does this mean? With limited exceptions, all visa applicants are presumed to be immigrants (and hence not eligible for non-immigrant visas) unless and until they satisfy the consular officer that they qualify for one of the nonimmigrant visa categories defined in INA section 101(a)(15). Per section 291 of the INA, the burden of proof is on the applicant. If a non-immigrant visa applicant does not meet this burden of proof to the satisfaction of the consular officer, then by law the alien is considered to be an applicant for immigrant status and should not receive a nonimmigrant visa.

    6. How is this section different from a ground of inadmissibility? Grounds of inadmissibility are set forth in INA 212(a). They generally apply to both immigrant and non-immigrant visas and most have a counterpart in a ground of removal available to the Department of Homeland Security (DHS) under INA 237. INA 214(b) serves as a basis for refusal of visas to aliens who do not establish entitlement to nonimmigrant visa classification by proving that they fall within a definition in INA 101(a)(15). The fact that an alien is denied an NIV under 214(b) does not mean that the alien is inadmissible to the United States. The same NIV applicant who is denied under 214(b) may, for example, be approvable for an immigrant visa.

    7. What are the standards for application of 214(b)? This section incorporates by reference the statutory standards for certain nonimmigrant visa classifications listed in 101(a)(15). These standards are further defined in corresponding regulations and FAM guidance. The applicant's failure to meet any one of the specific requirements of the applicable NIV category results in 214(b) denial. For example, failure to possess sufficient funds to defray educational expenses results in a 214(b) denial of student visa. Failure to make substantial investment results in a 214(b) denial of a treaty investor visa. Failure to possess the intent not to abandon a foreign residence results in denial of a B visa.

    8. Why is 214(b) so often summarized as applying solely to intending immigrants? The majority of NIV applications are for visitor or student visas. Most denials are based on failure to meet the residence abroad requirement. Consequently, 214(b) refusals have been equated by some with immigrant intent denials. As consular professionals, we need to be careful when explaining the application of 214(b) and when articulating the bases for refusal in individual cases. There are many NIV categories that do not have any immigrant intent provisions: A, C, D, G, I, K, N, O-1, R, S, T, and U categories. On the other hand, the B, E, F, J, M, O-2, P, Q, and TN categories do possess an immigrant intent requirement either by statute or regulation. The FAM provides guidance on each of these immigrant intent standards as they apply to their particular visa category. The Department is reviewing these sections and will amend them as appropriate to eliminate any possible sources of confusion.

    9. Consular Discretion: INA 214(b) requires the nonimmigrant visa applicant to establish "to the satisfaction of the consular officer~ that he is entitled to a nonimmigrant status under section 101(a)(15)". This means that every applicant subject to 214(b) must provide to the conoff a credible showing that the intended activities are consistent with the claimed non-immigrant status. Proper adjudication requires the consular officer to assess the credibility of the applicant and his/her evidence submitted to support the application. If the applicant meets the particular statutory/regulatory requirements of the NIV sought and the consular officer is satisfied that the applicant will lawfully engage in the activities consistent with the particular NIV status, and there are no inadmissibilities, then the visa may be approved.

    10. 214(b) Not Applicable In All Categories: It is important to note that Congress has expressly excluded H-1, L, and V visas from the statutory presumption established in 214(b). In adjudicating visa applications in these categories, consular officers must carefully review FAM guidance and other statutory provisions, including 212(a) grounds of inadmissibility.

    11. INA 214(b) should not be confused with or used as a substitute for an independent ground of inadmissibility under INA 212(a). The 214(b) basis of refusal may be overcome if the applicant demonstrates to the satisfaction of the consular officer that the applicant lawfully meets and will abide by all the requirements of the particular nonimmigrant visa classification. Inadmissibility attaches when evidence arises that the alien may fall within the purview of INA 212(a). As noted above, such inadmissibility may apply regardless of whether the applicant is seeking a nonimmigrant or an immigrant visa.

    12. The question arises whether INA 214(b) constitutes an anti-terrorism tool. As explained above, this section merely separates bona fide nonimmigrants from presumed immigrant applicants. While doing so, it should not be used as or equated with 212(a) grounds of inadmissibility, one of which directly relates to terrorism. Of course, it is accurate to note that during the NIV adjudication process, consular officers identify applicants who do not qualify for nonimmigrant status. In reviewing all the evidence, documentary and oral, the consular officer exercises sound judgment in assessing the applicant's credibility. Indications of possible deception arising from the applicant's demeanor and/or inconsistencies in the applicant's story may cause the consular officer not to be satisfied that the applicant will comply lawfully with all the requirements of the NIV category in question. The consular officer must focus on each of the requirements of the NIV category and be satisfied that the alien will comply lawfully with each requirement. Those applicants who do not satisfy the consular officer that they will meet these legal requirements are refused under INA 214(b). Persons so refused by a consular officer may unknown to the officer also in some cases be inadmissible under 212(a). But if this process raises any suspicion to the consular officer that the applicant might in any way be involved in suspected terrorist behavior or activity, the consular officer should hold the case in abeyance under Section 221(g) and submit a security advisory opinion (SAO) request providing all the facts in the case, even if it could readily be denied under 214(b). The consular officer should also share the information with the appropriate offices of interest at post and solicit their input should they have additional information or background material inadvertently not previously made available to the Consular Section. An SAO request serves to centralize information about potential terrorist activity and facilitate scrutiny of a potential suspect. Once the application has been referred for an SAO, no visa may be issued until the Department responds to the SAO request.

    13. Consistency: Most consular officers spend more time applying section 214(b) than on any other section of law. Careful interpretation and precise understanding of the law makes our work better. FSI's consular training division has begun handing out to all ConGen students laminated reference cards containing the texts of sections 101(a)(15)(b), 214(b), and 291. Posts should keep those sections of law and the FAM notes handy, and consult them frequently. Posts should also review local forms and information sheets to ensure that they reflect and articulate applicable law consistently.

    This is an excerpt from The Consular Corner December 2014. Reprinted with permission


    About The Author

    Liam Schwartz Liam Schwartz is the principal in Liam Schwartz & Associates, a corporate immigration and consular law firm. Liam can be reached on Facebook, Linked-In and Twitter and by email at Liam@lsa-law.com.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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