Spring 2004 issue

Visa Denials

On any given day throughout the world, some nonimmigrant visa applicants are refused visas. Most of them are turned down because they do not qualify under Section 214(b) of the Immigration and Nationality Act (INA). That law 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….

To qualify for a nonimmigrant visa, such as the kind issued to tourists, students, and temporary workers, applicants must show that they have a permanent residence outside the U.S. that they do not intend to abandon. They need to have strong ties outside the U.S. that would compel them to leave the United States at the end of their temporary stay. The law places the burden of proof squarely on the applicant.

There are no “magic formulas” as to what constitutes strong ties. Permanent residence and strong ties differ from applicant to applicant. “Ties” are the various aspects of one’s life that bind them to their country of residence: one’s social and family relationships, employment, possessions, and the like. Some examples of strong ties can be a steady job, a family, or any number of other things. “Ties” obviously assume different forms at different stages of life.

Consular officers are aware of this diversity. During visa interviews, they look at each application individually and consider the professional, social, and cultural aspects of each case. Consular officers also look at each applicant’s intentions, family situations, and long-range plans and prospects within his or her country of residence.

To obtain a visa, the best things a Polish visa applicant can have are a reasonable personal and professional situation here in Poland together with concrete plans for why they are going to the U.S. and what they plan to do there. They should also bring their old passports. A track record of genuine tourist travel is the best recommendation an applicant can give himself. It is far better than affidavits of support from American relatives or friends.

Nonimmigrant visa refusals under Section 214(b) of the INA are not permanent. The U.S. Embassy in Warsaw generally recommends that applicants wait until they have a significant change in their life situation before applying again. While there is no hard-and-fast rule, such changes rarely occur in less than a year. Applicants, however, may reapply for a visa at any time, especially if some important, unusual situation in their life was not properly explained in their first visa application.

Eligibility for a nonimmigrant visa is in no way based upon the situation of the inviting party. Visa applicants must qualify under Section 214(b) of the INA according to their own circumstances. American citizens may provide a short letter of invitation, but this is not necessary, and writing one cannot guarantee the issuance of a visa. Official invitations or affidavits of support (form I-130) are not necessary. In addition, there is no provision within the law that allows for a U.S. citizen or resident to guarantee the departure of a nonimmigrant visa holder from the U.S. Because of the volume of visa applicants, consular officers generally do not have time to examine lots of supplemental paperwork. This visa application form, which asks 41 separate questions about applicants, and one’s passport generally provide a good picture of the applicant. Please do not be surprised, then, if the officer poses only a few questions: they are trained to cut to the essential issues in determining who qualifies for a visa.

The law delegates the responsibility for issuance or refusal of visas to consular officers overseas. They have the final say in all visa cases. The U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of the law, and not to determinations of fact. The question of whether or not to issue a visa is a factual one, and therefore it is for consular officers to decide.