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ResourcesVisa & Immigration LawUS Immigration LawUS Visa Denial Thailand: Visa Denied Under Section 214(B)

US Visa Denial Thailand: Visa Denied Under Section 214(B)

Transcript of the above video:

This video is to briefly discuss section 214(b) of the Immigration Nationality Act, how it pertains to visa denials at the US Embassy in Bangkok or in any US Embassy around the globe for that matter.

214(b) is kind of a thorn in the side to anyone who has ever attempted to get a foreign national a tourist visa to the United States of America. By tourist visa I mean either a B1, B2, or B1/B2 or for that matter any other type of non-immigrant visa. Specific non-immigrant Visa. 214(b) basically creates in the mind of a Consular Officer adjudicating a non-immigrant visa matter a sort of "strong ties weak ties" analysis. Basically the person who is interviewing for a visa must show strong ties to either their home country here in Bangkok it’s mostly Thailand or to a third country that's not the United States so if you have a Thai National that say has dual nationality with Canada, they can have strong ties to Canada as opposed to Thailand, and that would still fit the analysis. In any case, that individual who's applying for the Visa my show strong ties to either their home country or another country abroad and they must show weak ties to the United States of America: this is a simultaneous thing.  They have to show strong ties and weak ties, "strong ties and weak ties" analysis. A Consular Officer making this determination, if they determine that that individual’s ties to the foreign countries are too weak or determine that the ties to the United States are too strong or any combination thereof, they can deny that application and it's not unheard of that such denials occur. With respect to 214(b), a quick side note regarding a notion under US law regarding Consular Absolutism.  There is a very old case that went to the United States Supreme Court, probably within a few decades of the country being founded or at least 1789 with our current constitution, where a plaintiff brought a case to the court and basically said that he felt that a visa denied abroad was denied unfairly. The courts basically created a Doctrine called Consular Absolutism at that time where they basically said "look we're not going to get into the business of peering over the shoulder of every Consular Officer operating abroad. We are basically going to say that that's the person with the boots on the ground, they are making that determination and we are not going to do anything to overcome it." So essentially what Consular Absolutism means is exactly what the term implies. The Consular Officer has absolute power with respect to the adjudication of a visa application. In essence the Consular Officer can simply “not like the look of someone” and deny a visa based on that.  In my experience that's not how capricious the system operates. Consular Officers, in my experience, don't tend to make denials based on those matters, based on those types of circumstances. What they tend to make denials on is exactly what 214(b) was created for which is they basically look at the overall situation and they say “on balance this person shows weak ties to their home country and stronger ties to the United States and therefore we think that that person could possibly be a risk of showing up in the US on a non-immigrant visa and simply staying there” and for that reason they deny that visa application. Another thing to note with respect to 214(b) is also a notion that can occur with US Customs and Border Protection which is what is called an “intending immigrant without proper documentation”. This sort of finding will occur from US Customs and Border Protection and it is very similar to a 214(b) finding abroad. What they are basically finding is that "Oh, this person has a validly issued tourist visa, they are coming to the United States but all evidence points to the fact that this person may be using this tourist visa in order to circumvent the Immigrant Visa system and come to the US and thereby use that tourist visa status to essentially covertly emigrate to the USA”. In situations where Customs and Border Protection makes that finding, that individual will probably be turned around from the United States. It's possible that that person can be put in what's called expedited removal proceedings which is essentially it's an expediting deportation and that individual could be barred from returning to the United States for as much as five years. In my experience such individuals who enter on a tourist visa and are found to be entering with immigrant intent, such individuals are usually allowed to withdraw the application for entry and return to their home country, in most cases I've dealt with, that's Thailand. Those individuals, if they voluntarily depart the United States, there is no explicit immigration demerit that's gained from that; that individual can later apply for another visa without any inadmissibility issues or any specific inadmissibility issues, generally. It should be noted further with respect to things like Consular Absolutism and US Customs and Border Protection. One further thing, notwithstanding the issuance of a valid visa, the United States Customs and Border Patrol Officers are allowed to simply turn someone away. Again they have very broad powers with respect to those entering the United States. Until such time as a person with a valid US visa has entered the United States and has been cleared through US Customs and Border Protection, that individual is not yet under all of the protections that the United States Constitution provides as far as legalities. Those individuals can be turned away from the United States using basically the plenary powers of both US Customs and Border Protection as well as denial at the US Embassy abroad using powers under 214(b) specifically for non-immigrant visas. A final thought. 214(b) is very different from denials of immigrant and non-immigrant visas with immigrant intent pursuant to 221-g. 221-g denials tend to be made for lack of documentation and once documentation requests are fulfilled, 221-g refusals are generally overcome and visas are issued. If you are interested in information about a 221-g denial there is another video on this channel where you can check out what a 221-g is and issues surrounding the 221-g. That being said, a final note regarding 214(b), if an individual is denied pursuant to 214(b) and then later attempts an immigrant Visa or non-immigrant visa like a K1 fiancée visa which can have dual intent, meaning that that non-immigrant visa holder can actually enter the United States with the intention to remain there as an immigrant, the 214(b) finding does not preclude later petition an application for say a fiancée visa or immigrant visa based on a spousal relationship.