Introduction
New York, USA – Blogs are supposed to be both informative and entertaining. To achieve it, I intentionally divided this blog, first, to include a scenario, or by laying down the foundation as lawyers call it and second, by addressing the substance of the inquiry in the section I call the “Heart of the Matter”.
If you prefer a matter-of- fact approach to immigration, I recommend that you jump ahead to the section I mentioned, otherwise, read on the scenario to get a little entertainment. By the way, please take time to read the disclaimer provided at the bottom of this blog. It is a little legalese but in short, it is saying that the interpretation and narration found in this article are of general nature and should not be interpreted as a legal advice.
SCENARIO
Melissa (38), Rick (32) and Sonia (25) are friends, all gainfully employed and love to travel. Melissa, a sales representative for a big pharmaceutical firm had been to parts of Asia like Singapore, Bangkok and Malaysia. Rick had been to Austria on a work related travel as an IT project manager, while Sonia is starting up her own bar/restaurant in Quezon City have travelled all around the Philippines.
Their cases are as follows:
Melissa was petitioned as a fiancé by her Fil-Am boyfriend but she was wants to see her boyfriend in preparation for their marriage. Rick is being sent by his IT consulting firm to New York for some “scoping work”, while Sonia wants to get from L.A., some motif inspiration for her restaurant.
They all applied for non-immigrant US visa but were all refused. They were very disappointed by the visa denial because they were simply handed a small piece of paper by the visa officer and were told that they will not be given visa for that day. Now, they want to know what went wrong and what they could have done differently.
THE HEART OF THE MATTER
NONIMMIGRANT VISA DENIAL
Q: Why was I denied?
A: Denial of a US Visa application is always due to reasons personal to the applicant. Each applicant is evaluated of his or her strong ties to his home country that would show“bona fide nonimmigrant intent”.
The things that the visa officer will look for are the following:
a. It was only a temporary trip to the United States;
b. The applicant have enough financial resources to support himself/herself while in the US;
c. The applicant maintains residence in his home country that he has no intention of abandoning and that he is gainfully employed or have substantial source of income therein;
For business visitor who is an employee, the following proof would be helpful in addition to what was shown above.
a. A letter from the company setting forth a legitimate business reason for the trip, the itinerary including the places where the visitor will stay, and the declaration that the local company will cover the expenses and the salaries of the alien;
Visitors who own their own local businesses or otherwise declare that they are self-employed might be subject to a more strict scrutiny and have to prove the following:
a. The applicant made sufficient financial provisions to adequately pay for the expenses of travel;
b. The purpose of the travel is adequately defined and plans during the stay need to be to be certain;
c. The applicant have sufficiently established the local business and is deriving substantial income to warrant his return from the US;
Failure to convince the visa officer of this bona fide nonimmigrant intent will result to denial under Section 214 (b) of the Immigration and Nationality Act (INA) or if the documentation is insufficient, wanting or deficient, then the denial under Section 221(g) of INA.
Q: What is denial under 214(b)?
A: Section 214 (b) of INA states that “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the visa officer, at the time of application for admission, that he is entitled to a nonimmigrant status...” Denial under this section means that you, as an applicant failed to convince the visa officer that you have a bona fide nonimmigrant intent based on your strong ties as defined above.
Q: What is denial under 221(g)?
A: Section 221(g) of INA states that :
“No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4) , if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15) (B) or (F) , if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a) , or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States.”
That is quite a mouthful provision to tell you that you, as an applicant, failed to provide sufficient documentation or evidence to support your application so they are denying your application. The visa officer will normally hand you a piece of paper for this denial specifying the required document that you can satisfy when you re-apply.
Q: Are there any other grounds of denial?
A: Yes and the reason for denial that you should avoid by all means is the denial under Section 212(a)(6)(C). The law says that “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.”
This happens when the applicant listens to so called “do gooders”, “fixers” “run off the mill visa consultants” who ply their trade near the US Embassy in Manila where they offer you diplomas, certificate of title, bank certifications, etc. that are fabricated. Not only that, any deliberate misrepresentation of material fact can put you in big time trouble. You cannot tell the consular officer that the reason for your travel to the US is to donate your liver or your heart or any other blatant outrageous claims either.
Q: My travel is purely work related, but why was I denied?
A: Traveling for work related activities does not guarantee your approval. The first thing you need to know is the nature of the business activity, and sometimes, the reputation of your company.
The activities for which the applicant are allowed was for the representation of the applicant’s company such as to solicit sales, negotiate contracts or take orders for work that will be performed outside of the US. It is also important to know that the applicant are NOT receiving payment from the US based source, and all the work is done for the applicant’s employer, NOT the US firm, and the control of the work done belongs to the employer.
B1 visa is mostly abused by “IT consulting firms” and “IT body shops” where they send their employees to allegedly conduct analysis and study of the systems and infrastructure of their client’s IT system for offshore consulting projects when in fact, they were being sent to work directly for the US company. The employee-applicant should be wary of this arrangement since their employers might be knowingly or unknowingly subjecting them to misrepresentation and fraud.
Q: We were to eventually get married anyway, do they have to deny my application?
A. This question is similar to the common question I get. “I have a pending petition, what are the chances of me getting a tourist visa?” And I will point to you the problem. If you have a pending immigrant petition or petition for a visa category with dual intent, you have already told the US State Department viz USCIS that you have an immigrant intent. This runs counter to your representation when you apply for a tourist or business visa (B1/B2) since that visa is given only if you have proved that you have bona fide nonimmigrant intent. This goes without saying that your application for a nonimmigrant visa will, more likely, be refused.
Q: I can prove them but the consul did not even take a look at my documents?
A: Each visa officer handles hundreds, if not thousands of applications during the course of their tenure. This enables them to develop a method of asking questions and quickly determining if you have the bona fide nonimmigrant intent. How do they do that, I do not know exactly, other than saying that the decision is most likely based on their presumption of your intent. So the visa officer is not obliged to look at your documents save that they may ask for it to be presented in the exercise of their discretion. As a practitioner, I would recommend that you prepare all the documents that you will show to support your “strong ties” just in case that you were asked for it.
Q: I was recommended to post a bond. Will this help?
A: I would have to ask you who recommended the bond? If it was the consular officer himself during the interview then by all means get his name and the terms of the bond that he is recommending IN WRITING and get on with it. While this is clearly specified under the INA, chances are the consular officer will not do this. Those being said, take with serious concern and skepticism the effectiveness of that kind of advice.
Q: Will a letter from my relative’s congressman or senator help?
A: As I mentioned above, the approval or denial of a nonimmigrant visa application depends on the personal circumstances of the applicant, more particularly, the finding of strong ties that would show bona fide nonimmigrant intent.
Letters from politicians may or may not be given weight based on the discretion of the consular officer.
Q: Can anybody help me applying for visa?
A: Immigration practitioners can help you to assess your situation, make recommendations as to the proper visa category, and help you to prepare your visa application to highlight to the visa officer your strong ties and bona fide nonimmigrant intent. Moreover, you will really need their help if you find yourself in the position that you were flagged to have committed fraud under INA at any given time.
By immigration practitioner, I mean LAWYERS who are admitted to any State of the US and who are in legal standing and practices immigration laws. There are those who claim themselves as “visa consultants” and promises results but are not immigration lawyers. So be very careful whose services you want to avail.
For immigration questions, feel free to reach out to:
