A Close Look At The Intent Of 214(b)
by Marc Ellis
"...every alien (other than a nonimmigrant described in subparagraph (l) or (v) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15)."The law was enacted in 1952, as part of the McCarran-Walter Immigration Act of 1952. Then, as now, it seems, there was a pro-immigration President in the White House facing down an anti-immigrant congress.
"Give-'em Hell" Harry Truman was President at the time of the Act. It was his final year in office before Ike replaced him. And Harry Truman didn't like Congress's attempt at immigration reform very much. In fact, he lived up to his nickname and gave Congress Hell about it, ultimately using his veto pen on the law in June of 1952. But Congress gave as good as it got and over-rode Truman's veto less than a month later.
II. A PRESUMPTION?
214(b) is something of a mystery to me. The more I look at it, the more counter-intuitive it appears. For instance, it is supposedly a presumption, something that consular officers are to bring to each interview. Legal presumptions normally are used at the front end of a legal or administrative matter. They are not normally restated to justify the end result. Most of the time, there is some kind of fact-finding that occurs between the presumption and the decision. And it is very unusual in the law for a presumption to be explicitly restated as a basis for a final legal decision. 
But that is what happens tens of thousands of time every day at U.S. Consulates around the world. Each refused applicant receives as printed letter stating that he or she has been refused under INA 214(b).
Looking back at the legislative history of the law, it can be argued that Congress never intended 214(b) to be utilized in the way it is often being used today. The earliest references we've been able to find to the law occur in 1950.
Here is what the legislative history says at page 527 of the 1950 Legislative History of the I.N.A.
"Any alien destined for the United States is to be considered an immigrant, with the exception of aliens who may be classified as coming within the scope of any one of seven non-immigrant categories in section 3(2);Consuls were informed that an alien should not be refused a visa simply because his case seems to fall into one of the eight categories…but each case must be considered on its own merits.
That's important. In 1950, Congress listed eight categories for NIV applicants that merited special scrutiny. Not one of those categories is that an applicant is a citizen of a poor country. Yet today, that appears to be a major driving force behind 214(b) denials.
And even more importantly, applicants whose cases do not merit special scrutiny because they satisfy each of the eight categories - are still being denied visas under 214(b).
III. "SO WHAT? THERE'S NOTHING YOU CAN DO."
A very smart and eminent lawyer previewed this article for me. He pointed out that it is possible that a visa applicant might not merit special scrutiny under any of the eight categories and still be denied a visa under 214(b). That would happen if the visa applicant failed to meet, "...any one of the specific requirements of the applicable NIV category...".
That's a fair point. And exactly how much time does an applicant have to satisfy an officer that he or she meets all of the specific requirements for the NIV category for which they are applying?
Like much of 214(b) enforcement, it appears to depend on the country where one is applying from. Some consulates give applicants more time than others. But in many consulates around the world news stories report and applicants complain loudly that the entire dialogue between the officer took place in three or four minutes. 
No officer, no matter how well-educated and intelligent, could fairly evaluate the objective evidence presented by a well-prepared and documentarily qualified applicant in three or four minutes. It's unquestionable that many qualified applicants are refused because they could not present their case in the brief interview they were granted.
"SO WHAT? THERE'S NOTHING YOU CAN DO ABOUT IT."
Part 2: From P.T. Barnum to the Starship Enterprise:
Tens of millions of people line up and pay their money to enter the big show and millions of them come away rejected, their pockets and purses a hundred dollars lighter. So let's take a look at how the Department of State explains visa refusals to disheartened applicants. You can find the Department of State's explanation of 214(b) refusals on this webpage. It's written from a very sensitive, "I feel your pain" point of view. Dr. McCoy, of the Starship Enterprise, would very much approve of this explanation, I think.
"Our consular officers have a difficult job. They must decide in a very short time if someone is qualified to receive a temporary visa. Most cases are decided after a brief interview and review of whatever evidence of ties an applicant presents.
WHAT CONSTITUTES "STRONG TIES"?
Strong ties differ from country to country, city to city, individual to individual. Some examples of ties can be a job, a house, a family, a bank account. "Ties" are the various aspects of your life that bind you to your country of residence: your possessions, employment, social and family relationships.
As a U.S. citizen or legal permanent resident, imagine your own ties in the United States. Would a consular office of a foreign country consider that you have a residence in the United States that you do not intend to abandon? It is likely that the answer would be "yes" if you have a job, a family, if you own or rent a house or apartment, or if you have other commitments that would require you to return to the United States at the conclusion of a visit abroad. Each person's situation is different."
Our consular officers are aware of this diversity. During the visa interview they look at each application individually and consider 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 situations, and long-range plans and prospects within his or her country of residence. Each case is examined individually and is accorded every consideration under the law."
Now Congress listed eight different categories, any of which justify heightened scrutiny for visa applicants. It did not use the word, "diversity". That word is not found either in the law or the legislative history.
These categories are well-defined and very specific. DOS in its enforcement of 214(b) has morphed a very specific intent behind law into something nebulous and vague. Dr. McCoy on the Starship Enterprise would very much approve.
"Strong ties differ from country-to-country, city to city"? Not only is that statement dubious on its face, it is not what the law says. It is not what the legislative history says.
It's true that Congress chose not to lay down a bright-line legal test for consular officers. The legislative history does say"...it is not possible to prescribe any hard and fast rule for determining in all cases whether the applicant has overcome the presumption of immigrant classification..."
But notice the phrase, "in all cases...". Congress certainly did intend to set forth eight specific categories where special scrutiny was merited in general. And when it included those factors, Congress necessarily excluded others.
There were many poor countries around in 1950. Congress could certainly have specified that applicants from poor countries deserve heightened levels of scrutiny. But it chose not to do so. Yet, I would speculate that the biggest single reason for 214(b) denials is the relative prosperity of the country the applicant is applying from.
"SO WHAT? THERE'S NOTHING YOU CAN DO ABOUT IT."
(c). "There is no Judicial Review"
I hear this from a lot of lawyers. I recommend they take a look at the case law, starting with Abourezk v. Reagan. It's true that Consular officers cannot be sued by foreign visa applicants. There is also no judicial review for denied visa applications. However, beyond those two areas though, Consular Officers have no greater immunity than any other federal official. They are subject to Bivens' and FTCA actions, as Abourezk clearly shows.
But the vast majority of US Citizens who might have a cause of action against a consular officers, can't afford to file a lawsuit. They are neither as well-organized, nor affluent as the plaintiffs and their organizations in the Abourezk case. And I would not want to see the very close Abourezk precedent tested in today's Supreme Court.
IV. "What Goes Around..."
I don't pay close attention to public opinion polls. Now and then, I read that the image of the USA today, is lower than it has ever been. 
Why? Is it only an unpopular war? Is it only an unpopular President or bad franchise restaurant food? Or does the perception that visa applicants carry away from interviews have something to do with our apparent low standing in the opinions of people around the world?
Does it matter what people think about the United States? Art Buchwald said, "Opinions are like ****oles. Everybody's got one." True. But do you really want hundreds of millions of them lined up against you?
The law changes from time to time, but the hard facts of life don't. If you're born rich in a poor country, you can get a visa and you can get justice. If you're born poor in a rich country, you don't need a visa, but you can't get justice. If you're born poor in a poor country, you line up in queues P.T. Barnum would envy. You pay your money, and after a brief interview, you lose your hundred dollars and maybe you lose your hope too.
It's not popular at the moment to point this out. But America loses something too. We lose the good will and affection of some of the most ambitious and hardest-working people in the world. Our colleges lose many of the world's most promising students.
Our economy loses the savviest business minds on the planet.
But given the anti-immigrant hysteria of the moment, maybe the cynics are correct.
"So what? There's nothing you can do about it."
And in fairness to consular officers, not one of them wants to have his or her name on the line that grants a visa to a terrorist who kills people. No officer wants to approve the next Mohammed Atta's visa application. I'm sure that is a common nightmare they share. So they err on the side of caution. Unfortunately, in erring on the side of caution, the Department of State is often throwing caution, common sense and civility to the wind.
The next Mohammed Atta is not likely to be a female student from India or Thailand. The next mass murderer is not likely to be a Vietnamese or a Mexican widow who just wants to visit her friends and relatives for a few weeks.
What's the solution? Does the process really need to be one that is "unfriendly, suspicious and arrogant," as the London Telegraph article I cited. Or is there a better way?
A good start would be for Congress to give 214(b) another look and update it. A presumption is just that - a presumption. It precedes a fact-finding. And it is weighed against the facts to arrive at a decision. It is done with thoughtfully and rationally.
But that's unlikely to happen, so DOS needs to take a serious look at who it promotes into management, how it trains its people, and how its consulates - including the foreign national staff- treat visa applicants and their sponsors.
Ha! That's even less likely than Congress revisiting the law.
V. "CUI BONO"?
A law professor once taught me to ask, "Cui bono?," "Who benefits?," every time I analyze a problem. In this case, the answer is easy. Other countries are more than willing to benefit from US unpopularity and short-sightedness at this moment in history.
In the Far East, the word is out. UK, Australia and Canada welcome foreign students. The U.S. doesn't. Don't even waste your money applying for a student visa to the U.S. That's the reality for most students. Now, US colleges as a result are suffering financially.
Who else benefits? America haters do. They can point to the process and say to those who might be more favorably disposed to America,
"You see? They line you up. They take your money and then they insult you. That's America for you."
The sad thing is, after looking at the legislative history, I can't help but think, "That's not the way the law was supposed to work."
1 Post-9/11 amendments to the INA require that every applicant for a visa to the U.S. be interviewed.
2 From October 1, 2000, through September 31, 2001, the State Department adjudicated approximately 10 million nonimmigrant visa applications worldwide. It approved 7.5 million.
3 In criminal trials for instance, a defendant is either found Guilty or Not Guilty. Judges and juries don't rule that defendants are "Presumed Innocent". Likewise, in Civil proceedings, a defendant is found to be either liable or not liable. Most of the time in the law, any presumption are dispensed with the trying of f acts, and a final legal result is reached.
4 "Dreams Dashed, Visas Denied" http://archive.capecodonline.com/special/brazil03/dreamsdashed24.htm, "Unfriendly, Suspicious, Arrogant Is This America?"Telegraph.co.uk November 23, 2006, inter alia.
5 P.T. Barnum - American impresario & circus owner, famous for the quotation, "There's a sucker born every minute.". Doctor McCoy was ship physician on the Starship Enterprise, in the TV series, "Star Trek.." He was a champion of emotion and empathy over logic.
6 P. 657 1950 United States Immigration and Nationalization Legislative History of the Act
7 484 U.S. 1 (1987).
8 The Discover America Partnership, a group of travel industry leaders, found that two thirds of the 2,011 foreign visitors it questioned found America "the worst country in the world" in the way they were treated. "Visiting the United States and interacting with the American people can have a powerful, positive effect on how non-US residents see our country," Geoff Freeman, executive director of the DAP, said. "Unfortunately, perceptions of a 'rude' and 'arrogant' entry process are turning away travellers and harming America's image."from "Unfriendly, Suspicious, Arrogant, at http://www.telegraph.co.uk/news/main.jhtml;jsessionid=HNEOY4Z1UUPHLQFIQMGCFF4AVCBQUIV0?xml=/news/2006/11/22/wusa22.xml
9 I can already hear the howls of laughter from my colleagues. No self-respecting lawyer would use the word "justice" in the abstract sense in a law article. To them, I plead mea culpa. I didn't write it only for lawyers.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.