Integrity Legal

Posts Tagged ‘214 b’

14th May 2011

It recently came to this blogger’s attention that some have criticized the current process associated with adjudication and issuance of United States visas. Notably, it would seem that this criticism is mostly concerned with non-immigrant visas such as the B-2 visa (US tourist visa) and the B-1 visa (US business visa). To quote directly from a Reuters story posted on the website airwise.com:

The complicated US visa system hurts tourism and must be reformed if the United States wants to attract lucrative tourism from countries such as China, India and Brazil, travel industry officials said…

Readers of this blog are encouraged to click upon the hyperlinks noted above to read this story in detail and also gain greater insight into this developing issue.

At the time of this writing the United States maintains a system which allows for some nations to receive admission to the USA through a visa waiver program. As noted above: China, India, and Brazil are not included in the visa waiver program. This situation exists notwithstanding the fact that these three nations in association with two others (South Africa and Russia) compose the so-called BRICS group of developing countries with what some would claim is a virtually unlimited capacity for economic growth in the future.

This visa waiver program also entails the so-called “ESTA” (Electronic System For Travel Authorization) program, which requires foreign nationals to pre-register for admission to the United States before beginning their journey to America. It should be noted that in its current form the ESTA program only pertains to nationals from visa waiver participating countries. Therefore, nationals from countries such as China, India, Brazil, Indonesia, and the Kingdom of Thailand cannot benefit from the visa waiver program and the ESTA program as of the time of this writing.

Those interested in further information on such topics are encouraged to visit a few official websites: HERE and HERE. To quote further from the aforementioned piece:

“The challenge we have is the unnecessary, burdensome US visa system,” said USTA president Roger Dow. “It’s really self-imposed barriers that we put on ourselves as a country that have caused us to lose international travel and that have stymied international growth.”

This blogger has heard this argument made in the past and it is certainly salient especially at a time when tourism income is in high demand in an international context. To continue quoting further:

The US visa process from beginning to end can take as long as 145 days in Brazil and 120 days in China, a USTA report said. In contrast, Britain takes an average of 12 days to process visas in Brazil and 11 days in China…

Clearly, the visa processing time differential between the United States and the somewhat similarly socioeconomically situated United Kingdom is a stark contrast. To quote further:

US Senator Amy Klobuchar, a Democrat who chairs a subcommittee focused on export promotion and competitiveness, said the travel industry was important to help President Barack Obama meet his stated goal of doubling exports by 2014. “We see it as part of our economic recovery. I see this as a way to get jobs in our country,” Klobuchar said…

It is refreshing to see a federal legislator like Senator Amy Klobucher from the sovereign State of Minnesota taking the time to investigate an issue that may, at first glance, seem mundane. In point of fact, matters pertaining to United States non-immigrant visas are extremely important as they can have a significant impact upon foreign direct investment in the United States and the amount of money raised by American companies and enterprises offering services to foreign nationals both in the USA and abroad. Finally, a legislator trying to find reasonable solutions to American economic concerns in a reasonable manner! America: Let us not forget, we are one of the most historically fascinating and economically dynamic nations ever to have made our voices heard in the chorus of history. Why do we forget this? We seem to find ourselves constantly debating the minutia of our past transgressions or the history of our geopolitically unique grouping of jurisdictions. We do this when solutions to some of the current economic problems stare us in the face. The reality is that there are many around the world who wish to do business with those in the United States of America. There are many who want to buy our products. There currently exists the distinct possibility that the continent of Asia will have a constantly growing middle class of prospective international travelers for decades into the future. These travelers will likely be traveling for both business as well as pleasure. It stands to reason that many prospective tourists from Asia will make their initial international travel decisions with great care. Therefore, America should continue to be mindful of the fact there exists an international competitive market for income generated from tourism.  It stands to reason that more tourists in America means more tourism income.

From a legal perspective there is something to be said for allowing further membership in the United States visa waiver program as it would lead to fewer overall denied visa applications based upon section 214(b) of the United States Immigration and Nationality Act. Currently, many tourist visa applications are denied pursuant to a presumption in the aforementioned section of U.S. law. This section requires Consular Officers to make the factual presumption that a tourist visa applicant is actually an intending American immigrant unless the applicant can produce sufficient evidence to overcome this presumption. The visa waiver program gets around this 214(b) presumption by waiving the need for an American visa. Simultaneously, the visa waiver program also restricts those foreign nationals admitted into the United States from adjusting status to lawful permanent residence. One may adjust one’s status to lawful permanent residence (Green Card status) from tourist visa status in the U.S.A. under very limited circumstances. The visa waiver program does not permit such adjustment and therefore requires those foreign nationals seeking immigrant status to depart the United States and undergo Consular Processing abroad.

It remains to be seen whether or not US visa policy regarding non-immigrant visas such as those described above will be changed, but clearly there is some momentum behind this rather important issue in Washington D.C.

For related information please see: K-1 visa system, K-3 visa system, or US Company Registration.

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3rd November 2009

Although this blog primarily focuses upon United States immigration for couples, we sometimes overlook the fact that the Petitioner may be a woman and the Beneficiary may be a man. Many American women in Thailand meet and fall in love with Thai men. Eventually the US Citizen must return to America and the couple begins to research options for the Thai national’s entrance into the USA.

One of the first visa categories that many couples look at is the category B2 visa also known as the tourist visa. Unfortunately, as in situations with an American man and a Thai lady, the US Embassy in Bangkok is reluctant to issue such visas to those with an American girlfriend, fiancee, or spouse because the relationship itself constitutes a “strong tie” to the US which is evidence bolstering the presumption of immigrant intent under 214(b) of the United States Immigration and Nationality Act (INA). Many tourist visas sought for Thai loved ones of US Citizens are denied under the above section of the INA.

Fortunately, the US fiance visa may be a possibility for the Thai-American couple as the US citizen fiancee could sponsor the Thai fiance for a K1 visa. This visa would allow the Thai man to come to the USA for 90 days. After arrival, the couple must marry and apply for adjustment of status so that the Thai man will be a lawful permanent resident in the United States. Should the couple not marry, then the Thai must leave the US before the 90 day period of lawful Immigration status ends. Generally, it takes between 6 and 7 months to process a K1 visa.

US marriage visas are also an option for the Thai-American couple. The usual method for receiving marriage visa benefits is for the Thai man to marry the American lady at a local Amphur office (Civil registrar office) in Thailand. Once the couple is legally married they will be eligible to apply for a CR-1 visa by filing an I-130 Immigration petition. It usually takes between 11 and 12 months for such a petition to be processed.

For those who wish to expedite the marriage visa process a K3 visa could be employed to shorten the processing time. It currently takes 8 months to process the supplemental I-129f petition for a K3. This type of visa requires the filing of two petitions. At this time, the K3 visa is probably not the best method of obtaining Immigration benefits because the K1 has a faster processing time and the CR1 visa does not require adjustment of status after entry.

All in all, the US Immigration process is basically the same regardless of each parties gender. That being said, US federal law (the Defense of Marriage Act) still requires that the petitioner and beneficiary be of the opposite sex.

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10th September 2009

In an apparent effort to deal with a are number of foreign nationals using Thai Tourist visas for unintended purposes, the authorities at the Ministry of Foreign Affairs are instructing Consular Officials at Royal Thai Embassies and Consulates to heavily scrutinize applicants for tourist visas. This edict seems especially targeted at Consulates and Embassies in the Southeast Asia region.  Thaivisa.com is covering the story and quotes the edict directly:

“As there has been a number of visa applicants having entered Thailand via tourist visa and misused it to illegally seek employment during their stay and, upon its expiry, sought to re-apply their tourist visas at the Royal Thai Embassy or the Royal Thai Consulate in neighboring countries, requests for visa renewal by such applicants are subject to rejection as their applications are not based on tourism motive, but to continue their illegal employment, which is unlawful.

This is in accordance with the Immigration Act, B.B. 2552 which stipulates that visa applicants are required to clearly express their real purpose of visiting Thailand. Should the case be found that the applicant’s real intention were concealed, the application will be rejected.

Please be informed that the intention of applicants to repeatedly depart and re-enter Thailand via tourist visa issued by the Royal Thai Embassy or the Royal Thai Consulate in neighboring countries in recent years upon its expiry, is considered as concealment of real purpose of visiting Thailand. Thus their visas applications will be rejected.”

Unlike the Thai O visa and the Thai Business visa, the Thai Tourist visa is not designed for those who wish to work in the Kingdom.  One present on a tourist visa is not entitled to apply for a Thai work permit. Due to this restriction, many foreigners opt to stay in Thailand and work illegally or “off the books.” Although tolerated at one time, this practice is viewed with increasing animosity by Thai Immigration officials particularly since the world wide economic downturn.

Thailand’s policy regarding this practice is similar to Section 214b of the United States Immigration and Nationality Act. This statute creates the presumption that those entering the United States on a non-immigrant visa, like a US Tourist visa, are in fact intending immigrants. United States Consular officers often reject tourist visa applicants because they cannot demonstrate true “tourist intention,” meaning that they do not have sufficiently strong ties to a country outside of the US which would compel them to depart the United States.  Working in the United States on a tourist visa without work authorization is also considered to be a major violation of non-immigrant status (although not a ground of inadmissibility). Thailand seems like it is beginning to tighten up immigration protocols and coincidentally these measures are making the system resemble the US Immigration system.

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6th September 2009

Being denied for a visa to the United States of America is certainly not something that people researching the immigration process wish to think about. However, visa denials do occur and by understanding the reasons for denial it may allow prospective immigrants to make more informed decisions regarding their immigration strategy.

When it comes to American Family Immigration a common miscalculation involves applying for a US Tourist Visa on behalf of a foreign loved one. For example, if an American Citizen has a Thai fiancee and he attempts to assist in obtaining a US Tourist Visa for her, it will very likely result in a denial of the visa application. This is not due to some sort of malevolent feeling on the part of the United States Consular Officers, but it is rooted in American Immigration law.

It is probably best to simple quote the US Department of State website:

“Section 214(b) is part of the Immigration and Nationality Act (INA). It 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 admission, that he is entitled to a nonimmigrant status…’

To qualify for a visitor or student visa, an applicant must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Failure to do so will result in a refusal of a visa under INA 214(b). The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant.”

Overcoming the presumption of immigrant intent has always been a somewhat major obstacle, but visa denials under this section of the law became more prevalent after the tragedy of September 11, 2001. After 9/11, there were some changes made in the way that non-immigrant visas were processed. A particularly critical change was the requirement that the applicant for a United States tourist visa be interviewed in person. This requirement, combined with increased scrutiny and heightened security concerns lead to more Tourist visa denials. In many cases, the denials were based upon section 214 (b) because the applicants failed to show that they were going to return to their home country, or, at the very least, leave the USA.

Where the foreign applicant is a loved one of a US Citizen, particularly where the Citizen primarily resides in the USA, it is unlikely that the tourist visa application will be approved unless that applicant can show sufficiently “strong ties,” to their home country. However, to forestall needlessly wasting of time and resources, it may be wise for a couple to look into the prospect of submitting a K1 visa application or seek to obtain a K3 visa. The K1 visa is a travel document which allows a temporary stay in the United States, but leaves room under the Doctrine of Dual Intent to allow for the visa holder to adjust status to US permanent residence.

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15th June 2009

For many Americans the Tourist visa is the travel document that comes to mind when discussing US Immigration. For Immigration based upon a family relationship the Tourist Visa is the worst option when an American Citizen spouse or Fiance is seeking to bring the foreign fiancee or spouse to the USA in order to remain.

One of the main reasons why the tourist visa is not an option that should be contemplated when making family immigration decisions stems from the fact that the purpose of the US tourist visa is misunderstood and the visa itself has been greatly misused in the past. A US Visitor Visa is intended for short term recreational purposes only. Similarly the US business visa is meant for short term business endeavors in the USA (conferences, trade shows, etc.) Neither are designed for use by those who seek to have their loved one remain in the USA permanently.

Consular officers making a judgment call on a US visitor visa must be convinced that the applicant has overcome the statutory presumption of immigrant intent. This doctrine stipulates that the applicant for a tourist visa is a presumed immigrant until they can demonstrate that they are strongly connected to a place outside of the USA. So connected, in fact, that they are more likely to leave the United States in order to return to that location than they would be to remain in the United States past their visa expiration.

A major misconception regarding practically any visa is the idea that it confers a “right” to enter the United States of America. In reality, the visa confers a right to present themselves at the border and upon inspection and approval from the Immigration officer, be admitted to the United States. Even at a United States port of entry, it is possible for the traveler to be turned away if the Immigration officer feels it is necessary. As a practical matter, this rarely occurs due to the fact that most entrants to the USA have a legitimate reason for entry.

Since September 11, 2001 US Immigration officials have been more zealous in their enforcement of US Immigration rules and regulations and as a result the scrutiny placed upon entrants to the US, whether they intend to immigrate or not, has increased.

Due to the fact that the US tourist visa is intended for non-immigrant purposes and the fact that scrutiny of non-immigrants to the US has increased. It is now highly advisable that those wishing to bring a loved one to the USA use the proper travel document. For those seeking to bring a loved one that they are not married to, a K-1 visa may be an appropriate option. While those with an overseas wife might opt for the K-3 visa, CR-1 Visa, or IR-1 Visa depending upon the couple’s circumstances and immigration goals.

Be advised that entering the USA on a visitor visa with anything other than NON-immigrant intent, could be viewed as an attempt to defraud immigration officials and lead to criminal or civil penalties as well as a possible later finding of inadmissibility. If deemed inadmissible, one can only be admitted to the USA after application for a waiver.

(Please note: this post is not a substitute for legal advice. For proper legal advice seek the counsel of a licensed attorney. No part of this piece should be construed as forming an Attorney-client relationship between author and reader.)

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