Temporary Visa Applicants Must Prove Their Intent to Leave the U.S. on Time

Tips on presenting a successful application for a nonimmigrant visa to the United States.

The United States welcomes foreign nationals who want to visit on business or pleasure. Unlike in many other countries, in the United States there are no internal controls on most visitors, such as the need to register with local authorities. But to enjoy such privileges, foreign nationals must prove that they qualify for entry.

Particularly challenging is the requirement that visa applicants prove that they will return to their homeland when their permitted stay runs out. U.S. immigration law requires consular officers to view every visa applicant as an intending immigrant until the applicant proves otherwise.

Every Alien Is Presumed to Be an Intending Immigrant

Under U.S. immigration law, the applicant has the burden of proof that he or she is not an intending immigrant. Section 214(b) of the Immigration and Nationality Act (I.N.A.) 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, for example, an applicant must meet the requirements of I.N.A. Sections 101(a)(15)(B) or (F), respectively. Failure to do so will result in a refusal of a visa under I.N.A. 214(b).

The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he or she has no intention of abandoning. Applicants can prove the existence of such residence by demonstrating that they have ties to their homeland that would compel them to leave the U.S. at the end of their temporary stay.

Consular officers make the decisions to grant or deny student or visitor visas within minutes of the consular interview, after a brief review of whatever evidence an applicant presents.

"Strong Ties" Test for Visitor and Student Visas

Consular officers apply the strong ties test on a case-by-case basis. Strong ties may differ from country to country, city to city, and individual to individual. Some examples of ties can be a job, house, family, and bank account. "Ties" are the various aspects of the visa applicant’s life that bind the applicant to his or her homeland. The ties might comprise assets, a job, children, a spouse, elderly parents, a business, or health-related reasons.      

Generally a person who has a steady job, spouse, and small children who are not coming to the United States with the visa applicant, as well as real estate assets, bank accounts, or a business, is a visa applicant meeting the strong ties test.

To show these ties, the visa applicant needs to bring documents to the consular interview. Acceptable documents include but are not limited to: title to assets, bank records, business records, leases, a letter of employment, birth certificates for the applicant’s minor children, and pictures of the family members who will remain in the homeland.  

When a consular officer evaluates the visa application, he or she looks at the applicant's professional, social, cultural, and other factors. In cases of younger applicants who may not have had an opportunity to form many ties, consular officers may look at the applicants specific intentions, family situation, and connections in the home country and in the United States, the applicant's age, and his or her long-range plans and prospects within the country of residence.

Evaluation of an Immigrant Client's Situation

It is our practice to prepare the nonimmigrant visa application and evaluate realistically the client’s ties to the homeland before applying for a visitor or student visa. We discuss a list of possible ties with the client and carefully document every tie to the homeland. When the prepared documents are presented at the consular interview, it is immediately clear to the consular officer what written documents the client is presenting and their significance. All the documents are translated and tabbed so they can be quickly read or evaluated.

If the visa applicant has relatives or friends in the United States, we encourage the applicant to discuss sponsorship opportunities with their relatives and friends. When possible, we utilize the Affidavit of Support as well as prepare a personal statement from the applicant to meet the strong ties test. We encourage our clients to obtain health insurance coverage for the duration of their U.S. visit.

Preparation for the Consulate Interview

We prepare our clients for the consulate interview. Because of the volume of applications received, most consular officers are under considerable time pressure to conduct a quick and efficient interview. They must make a decision, for the most part, on the impressions they form during the first minute of the interview. Consequently, what the client says first and the initial impression he or she creates are critical to the client’s success. We prepare clients to keep their answers to the officer's questions short, to the point, and truthful.   For example, if a client comes on a tourist visa, he or she needs to know by heart what places he or she will visit, and must posses a prearranged tour schedule.  

Denial Under Section 214(B) Is Not Permanent; But Is Damaging

Although denial of a visa under Section 214(B) of the I.N.A. is not permanent, it is very damaging. The success rate of getting a tourist or student visa after one denial is greatly diminished even if the applicant provides the required evidence to meet the strong ties test. Therefore, we strongly encourage our clients to thoroughly prepare for the consulate interview and provide the necessary documents at the initial interview.  

Reapplying for a nonimmigrant visa is expensive. The U.S. consulates abroad charge a non-refundable visa fee every time an applicant applies for a nonimmigrant visa. If the client receives visa refusal, we instruct the client to ask the officer for a list of documents he or she would suggest the client bring next time to overcome the refusal, and try to get the reason of the denial in writing.

Can an Applicant Appeal the Denial of a Nonimmigrant Visa?

Immigration law delegates responsibility for issuance or refusal of visas to consular officers overseas. They have the final say on all visa cases.

By regulation, the U.S. Department of State has authority to review consular decisions, but this authority is limited to the interpretation of law, as contrasted to determinations of facts. The questions at issue in nonimmigrant visa denials tend to be factual, namely, whether the applicant possesses strong ties to his or her homeland. The factual questions fall exclusively within the authority of U.S. consular officers. The officers are given broad authority to determine whether a visa applicant is an intending immigrant. Therefore, visa refusals are, in effect, not appeallable.

By Evita Tolu

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