Integrity Legal

2nd October 2010

Many American Citizens and Lawful Permanent Residents who vacation or live abroad meet someone special while in another country and wish to bring that special someone back to the United States of America. Under those circumstances, some pose the question: “Can I bring my foreign girlfriend, or boyfriend, back to the United States on an American tourist visa?” In the context of Vietnam, many ponder the more specific question: “Can I bring my Vietnamese Girlfriend (or Boyfriend) back to the USA on an American tourist visa?” Depending upon the facts of a given case, a Consular Officer at a United States Embassy or Consulate abroad will make a determination as to visa suitability on a case by case basis. Pursuant to the doctrine of Consular Absolutism, Consular Officer have virtually unfettered discretion when it comes to making factual decisions regarding visa issuance. In the context of Non-Immigrant visas this discretion can have a major impact upon an individual’s ability to bring a Vietnamese loved one back to the USA from Vietnam on a US Visitor Visa. In a significant number of cases US visitor visas are denied to the boyfriends and girlfriends of Americans. This is often due to a relatively little known section of the US Immigration and Nationality Act known as Section 214(b).

Section 214(b) of the INA requires that Consular Officers adjudicating non-immigrant visas abroad (J1 visa, F1 visa, B1 visa, B2 visa, etc.) presume that the applicant is actually an intending immigrant unless that applicant can show evidence to the contrary. This presumption is legally required, but many believe that US tourist visa denials are some sort of personal rejection. In point of fact, 214 (b) would seem to be a very high threshold to overcome by the applicant as the law presumes that they are intending immigrants unless documentation or evidence can be provided to mitigate this presumption. As a result, a sort of “strong ties” vs. “weak ties” analysis is often utilized to deal with this problem. Tourist visa applicants of Vietnamese origin generally must show strong ties to Vietnam (or another country abroad) and weak ties to the USA. In many cases, the mere presence of an American significant other is enough to make 214(b) virtually insurmountable since such a relationship could be construed as a “strong tie” to the USA.

In the past, some attempted to the use the American Tourist Visa as a means of bypassing the comparatively longer processing times associated with US Family Visa applications. That said, this is an unwise course of action as it could be construed as visa fraud to knowingly seek non-immigrant visa benefits in order to enter the USA, marry a US Citizen, and thereafter file for Immigrant visa benefits. Penalties for visa fraud can be quite severe. Therefore, those wishing to immigrate to then USA are well advised to apply for the proper visa category.

Those seeking Family Immigration benefits should note that entering into a relationship merely to acquire visa benefits could also be viewed as fraud. Therefore, couples seeking immigration benefits should do so only if a petition or application is based upon a bona fide relationship.

For related information please see: US Visa Burmese Girlfriend or K1 Visa Vietnam.


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