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.

By , Attorney

The United States welcomes foreign nationals who want to visit on a short-term basis for business, pleasure, or another reason contemplated within U.S. immigration law. 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 U.S. entry in the first place.

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 U.S. visa applicant as an intending immigrant— that is, someone who wants to stay permanently—until the applicant proves otherwise. Let's take a closer look at what that means for people applying for nonimmigrant (short-term) visas.

Every U.S. Visa Applicant Is Presumed to Be an Intending Immigrant

Under U.S. immigration law, all visa applicants have the burden of proof to show that they are not intending immigrants. Section 214(b) of the Immigration and Nationality Act (I.N.A.) or 8 U.S.C. § 1184(b) 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. §§ 101(a)(15)(B) or (F), respectively. (8 U.S.C. § 1101(a)(15)(B) or (F).) 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 prospective visitors or students possess a residence abroad that they have 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.

Realize, however, that consular officers make decisions to grant or deny student or visitor visas within minutes of the consular interview, often without even reviewing whatever evidence an applicant has ready to present to the officer.

What the "Strong Ties" Test for Visitor and Student Visas Involves

Consular officers apply the strong-ties test on a case-by-case basis. What constitutes strong ties can 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. These might include assets, a job, children, a spouse, elderly parents, a business, or health-related concerns.

In most cases, a person who has a steady job, spouse, and small children who are not also coming to the United States, as well as real estate assets, bank accounts, or a business, will meet the strong-ties test.

To show these ties, the visa applicant should make supporting documents available at the consular interview. Acceptable documents might include copies of 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.

A consular officer evaluating the visa application will look at the applicant's professional, social, cultural, and other factors. In cases of younger applicants who might not have had an opportunity to form many ties, consular officers might look at their specific intentions, family situation, and connections in the home country and in the United States, the applicant's age, and their long-range plans and prospects within the country of residence.

Social media also has become fertile ground for consular officers to review before approving or denying a visa application. A seemingly fun post about "moving to the U.S." could very well doom a visitor visa application.

Showing Sources of Financial Support in the U.S.

If the visa applicant has relatives or friends in the United States, it can be helpful to have on hand evidence of financial support for the planned visit. One option is to prepare a Form I-134 Affidavit of Support as well as a personal statement or invitation letter from the host to show resources available to provide room and board.

What Happens at the Consular Interview for a Nonimmigrant Visa

Because of the volume of visa applications received, most U.S. consular officers are under considerable time pressure to conduct a quick and efficient interview. They must make a decision, for the most part, based on impressions they form during the first seconds of the interview.

Consequently, what the applicant says first and the initial impression created are critical to success. It's best to keep answers to the consular officer's questions short, to the point, and truthful. For example, people planning to visit the U.S. on a tourist visa should know by heart what places they will visit and should have a written tour schedule.

Visa 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 nevertheless 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, it's best to thoroughly prepare for the consular interview and provide the necessary documents at the initial interview.

Can an Applicant Appeal the Denial of a Nonimmigrant Visa?

In short, no. The consular officer's decision is final. The only option is to submit a new application with new or additional evidence or once circumstances have changed to show more or stronger ties to the home country.

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