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Posts Tagged ‘American Visa Denied’

16th January 2011

There was a recent story on the Telegraph.co.uk website entitled, “Boy, 9, has Disney World trip ruined after US Immigration rules him a threat” it was reported that a 9 year old child was denied a US tourist visa to the United States. To quote directly from the article:

They said there was a risk he would not leave the US at the end of his holiday and refused his application under Section 214 (b) of the Immigration and Nationality Act.

This blogger noticed in the title of the original article that the use of the term “US Immigration” may have been somewhat opaque as the visa application was likely filed with a US Consulate under the jurisdiction of the United States Embassy in the United Kingdom and not the United States Citizenship and Immigration Service (USCIS) in the USA. That said, the article describes the visa application of a child in the United Kingdom and the denial of the application. The child’s parents were attempting to surprise him with a trip to Disney World in the US State of Florida. To quote further directly from the article itself:

Micah [the proposed beneficiary of the US B-2 Visa sought] was born in Britain and has lived in Middlesex all his life with his mum Claudia Lewis.

He holds a South African passport because his grandparents Kathy and Edward, who have lived and worked in Britain since 1990, only got him a South African passport.

They are originally from South Africa.

A letter from Micah’s primary school was included in his visa application confirming he attended the school.

But the US Embassy’s rejection letter to Micah said: “Because you either did not demonstrate strong ties outside the United States or were not able to demonstrate that your intended activities in the US would be consistent with the visa status, you are ineligible.”

His grandmother Kathy, from Brixton, South London, said: “It was going to be a total surprise. He would have loved it.

This blogger highly recommends that those interested in this heartfelt story go to the Telegraph website and read further.

Section 214(b) of the United States Immigration and Nationality Act is a provision which creates a legal presumption in the eyes of adjudicating Consular Officers at every US Mission abroad (US Embassy, US Consulate, American Institute, Visa Units, etc.) that an applicant for a United States visa is actually an undisclosed intending immigrant. Overcoming this presumption often occurs when a Consular Officer feels that, as opposed to the factual citing from the denial noted above, the applicant has shown “strong ties” to their country of origin, or another country abroad, and, simultaneously, “weak ties” to the United States.

In another section of the aforementioned article the author noted that the couple had spent a considerable sum of money purchasing plane tickets in anticipation of the proposed holiday in the USA. As noted in previous postings on this blog, it is not generally prudent in visa application proceedings to assume a particular outcome as issuance of United States travel documents to foreign nationals is not considered a foregone conclusion nor a “formality”. The circumstances mentioned above are unfortunate as they were unexpected and costly (in both monetary and emotional terms). Those foreign nationals wishing to travel to the United States should not make irrevocable travel arrangements until such time as a US visa has been issued and remitted to the applicant.

That said, the one major factor that could materially alter the outcome of another visa application in a case such as this: a UK Passport. As noted in the section quoted above from the US Embassy the applicant did not show “strong ties” to the UK or another country abroad. If the child always lived in the UK, but never possessed a UK passport and, as noted in the above cited section; never lived in South Africa, but was attempting to use a South African passport to travel to the US, then could it be inferred that the child’s ties to either country were attenuated? Possibly, and without knowing further about details, that may very well have been the reason for denial. However, as all cases are adjudicated based upon the unique facts under the circumstances any analysis of the aforementioned denial is merely an exercise in speculation.

It is generally imprudent to continuously resubmit American visa applications when there has been no material change to the facts of one’s case. However, when circumstances do change materially, then a subsequent application may not be frivolous. In the eyes of the law in many jurisdictions a change in nationality, the acquisition of nationality, the registration of nationality, or the naturalization to a new nationality all come with a host of different legal rights, obligations, and privileges not least of these may be a passport. Perhaps, after acquiring a UK Passport on behalf of the child, if eligible for such a travel document, another visa application would be approved? Better yet, upon acquisition of a UK Passport, the child in the article may be eligible for the visa waiver program, although his previous US visa denial would need to be noted in the Electronic System for Travel Authorization (ESTA) registration system.

Hopefully those thinking of applying for a US Tourist Visa in the future will take note of the fact that one’s nationality is an important facet of any immigration petition or visa application.

For related information please see: US Visitor Visa.

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8th December 2010

For those who frequently read this web log will undoubtedly note that a frequent topic discussed within these pages is Comprehensive Immigration Reform. In a recent document promulgated by the Congressional Research Service and distributed by the American Immigration Lawyers Association (AILA), the matter of legal inadmissibility was discussed in the context of Comprehensive Immigration Reform. The following is a direct quotation from the document published by the Congressional Research Service (CRS) and distributed by AILA:

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals that were enacted in the 1990s. All foreign nationals seeking visas must undergo admissibility reviews performed by U.S. Department of State (DOS) consular officers abroad. These reviews are intended to ensure that they are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. These criteria are: health related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and, aliens previously removed. Over the past year, Congress incrementally revised the grounds for inadmissibility. Two laws enacted in the 110th Congress altered longstanding policies on exclusion of aliens due to membership in organizations deemed terrorist.

Terrorism has been a key concern for American government officials across the entire spectrum of agencies associated with Immigration and travel to the United States. Public health and safety are also significant issues for American Immigration and Consular Officers. To quote the aforementioned publication further:

The 110th Congress also revisited the health-related grounds of inadmissibility for those who were diagnosed with HIV/AIDS. More recently, the “H1N1 swine flu” outbreak focused the spotlight on inadmissibility screenings at the border. Questions about the public charge ground of inadmissibility arose in the context of Medicaid and the state Children’s Health Insurance Program (CHIP) in the 111th Congress.

Influenza has been concerning to many health officials in recent years. However, for many the removal of HIV/AIDS from the list of diseases which can result in a finding of inadmissibility was a relief as many individuals who were previously inadmissible to the USA may have immediately become admissible after HIV/AIDS was no longer a legal grounds for finding someone inadmissible to the USA. This issue was especially acute in the LGBT community as HIV and AIDS issues seem to have a disproportionate impact upon individuals and couples within that community. The report went on to note that issues pertaining to legal inadmissibility are likely to be discussed in the context of proposed Comprehensive Immigration Reform legislation:

While advocacy of sweeping changes to the grounds for inadmissibility has not emerged, proponents of comprehensive immigration reform might seek to ease a few of these provisions as part of the legislative proposals. The provision that makes an alien who is unlawfully present in the United States for longer than 180 days inadmissible, for example, might be waived as part of a legislative package that includes legalization provisions. Tightening up the grounds for inadmissibility, conversely, might be part of the legislative agenda among those who support more restrictive immigration reform policies.

Many people are found inadmissible to the United States every year. Among those found inadmissible are those who are unable to seek a remedy in the form of either an I-601 waiver or an I-212 waiver application for advance permission to reenter the USA. Individuals who have been found inadmissible and cannot seek a waiver are colloquially referred to as being unwaivably excluded from the United States. Bearing this in mind, many findings of legal inadmissibility can be remedied through use of a waiver. That said, the waiver process and the standard of proof for obtaining a waiver can be difficult to overcome. For this reason, many bi-national couples opt to utilize the services of an American immigration attorney to assist in matters related to United States Immigration. It is always prudent to ask for the credentials of anyone claiming expertise in United States Immigration law as only a licensed American attorney is permitted to provide advice, counsel, and representation in pending matters before the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security (DHS), and the American State Department.

For related information please see: US Visa Denial.

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