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U.S. Department of State INA 214(B) Basis of Refusal Not Equivalent to Inadmissibility (12/04)

R 281655Z DEC 04



E.O. 12958: N/A


1.  M/R (SEP) cleared this telegram.

2.  Summary: This cable reviews proper interpretation of
section 214(b) of the Immigration and Nationality Act.
Section 214(b) has direct applicability to most non-
immigrant visa cases.  It cannot be simplified to mean only
that applicants must have "ties" or must intend to return
home.  A refusal under section 214(b) is different from a
212(a) refusal, in that the former does not constitute a
finding of inadmissibility.  End summary.

3.  Consular officers spend a significant portion of their
time interpreting, applying, and explaining section 214(b)
of the immigration and nationality act.  Thus, it deserves
close reading and careful interpretation.  Through this
cable, we would like to clear up any possible
misunderstandings about 214(b) and its appropriate
application.  Posts are asked to review carefully this
cable with all consular officers.

4.  What does the statute actually say?  The first sentence
of INA 214(b) states that:  "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)."

5.  What does this mean?  With limited exceptions, all visa
applicants are presumed to be immigrants (and hence not
eligible for non-immigrant visas) unless and until they
satisfy the consular officer that they qualify for one of
the nonimmigrant visa categories defined in INA section
101(a)(15).  Per section 291 of the INA, the burden of
proof is on the applicant.  If a non-immigrant visa
applicant does not meet this burden of proof to the
satisfaction of the consular officer, then by law the alien
is considered to be an applicant for immigrant status and
should not receive a nonimmigrant visa.

6.  How is this section different from a ground of
inadmissibility?  Grounds of inadmissibility are set forth
in INA 212(a).  They generally apply to both immigrant and
non-immigrant visas and most have a counterpart in a ground
of removal available to the Department of Homeland Security
(DHS) under INA 237.  INA 214(b) serves as a basis for
refusal of visas to aliens who do not establish entitlement
to nonimmigrant visa classification by proving that they
fall within a definition in INA 101(a)(15).  The fact that
an alien is denied an NIV under 214(b) does not mean that
the alien is inadmissible to the United States.  The same
NIV applicant who is denied under 214(b) may, for example,
be approvable for an immigrant visa.

7.  What are the standards for application of 214(b)?  This
section incorporates by reference the statutory standards
for certain nonimmigrant visa classifications listed in
101(a)(15).  These standards are further defined in
corresponding regulations and FAM guidance.  The
applicant's failure to meet any one of the specific
requirements of the applicable NIV category results in
214(b) denial.  For example, failure to possess sufficient
funds to defray educational expenses results in a 214(b)
denial of student visa.  Failure to make substantial
investment results in a 214(b) denial of a treaty investor
visa.  Failure to possess the intent not to abandon a
foreign residence results in denial of a B visa.

8.  Why is 214(b) so often summarized as applying solely to
intending immigrants?  The majority of NIV applications are
for visitor or student visas.  Most denials are based on
failure to meet the residence abroad requirement.
Consequently, 214(b) refusals have been equated by some
with immigrant intent denials.  As consular professionals,
we need to be careful when explaining the application of
214(b) and when articulating the bases for refusal in
individual cases.  There are many NIV categories that do
not have any immigrant intent provisions: A, C, D, G, I, K,
N, O-1, R, S, T, and U categories.  On the other hand, the
B, E, F, J, M, O-2, P, Q, and TN categories do possess an
immigrant intent requirement either by statute or
regulation.  The FAM provides guidance on each of these
immigrant intent standards as they apply to their
particular visa category.  The Department is reviewing
these sections and will amend them as appropriate to
eliminate any possible sources of confusion.

9.  Consular Discretion: INA 214(b) requires the
nonimmigrant visa applicant to establish "to the
satisfaction of the consular officer~ that he is entitled
to a nonimmigrant status under section 101(a)(15)".  This
means that every applicant subject to 214(b) must provide
to the conoff a credible showing that the intended
activities are consistent with the claimed non-immigrant
status.  Proper adjudication requires the consular officer
to assess the credibility of the applicant and his/her
evidence submitted to support the application.  If the
applicant meets the particular statutory/regulatory
requirements of the NIV sought and the consular officer is
satisfied that the applicant will lawfully engage in the
activities consistent with the particular NIV status, and
there are no  inadmissibilities, then the visa may be

10.  214(b) Not Applicable In All Categories: It is
important to note that Congress has expressly excluded H-1,
L, and V visas from the statutory presumption established
in 214(b).    In adjudicating visa applications in these
categories, consular officers must carefully review FAM
guidance and other statutory provisions, including 212(a)
grounds of inadmissibility.

11.  INA 214(b) should not be confused with or used as a
substitute for an independent ground of inadmissibility
under INA 212(a).  The 214(b) basis of refusal may be
overcome if the applicant demonstrates to the satisfaction
of the consular officer that the applicant lawfully meets
and will abide by all the requirements of the particular
nonimmigrant visa classification.  Inadmissibility attaches
when evidence arises that the alien may fall within the
purview of INA 212(a).  As noted above, such
inadmissibility may apply regardless of whether the
applicant is seeking a nonimmigrant or an immigrant visa.

12.  The question arises whether INA 214(b) constitutes an
anti-terrorism tool.  As explained above, this section
merely separates bona fide nonimmigrants from presumed
immigrant applicants.  While doing so, it should not be
used as or equated with 212(a) grounds of inadmissibility,
one of which directly relates to terrorism.  Of course, it
is accurate to note that during the NIV adjudication
process, consular officers identify applicants who do not
qualify for nonimmigrant status.  In reviewing all the
evidence, documentary and oral, the consular officer
exercises sound judgment in assessing the applicant's
credibility.   Indications of possible deception arising
from the applicant's demeanor and/or inconsistencies in the
applicant's story may cause the consular officer not to be
satisfied that the applicant will comply lawfully with all
the requirements of the NIV category in question.   The
consular officer must focus on each of the requirements of
the NIV category and be satisfied that the alien will
comply lawfully with each requirement.  Those applicants
who do not satisfy the consular officer that they will meet
these legal requirements are refused under INA 214(b).
Persons so refused by a consular officer may unknown to the
officer also in some cases be inadmissible under 212(a).
But if this process raises any suspicion to the consular
officer that the applicant might in any way be involved in
suspected terrorist behavior or activity, the consular
officer should hold the case in abeyance under Section
221(g) and submit a security advisory opinion (SAO) request
providing all the facts in the case, even if it could
readily be denied under 214(b).  The consular officer
should also share the information with the appropriate
offices of interest at post and solicit their input should
they have additional information or background material
inadvertently not previously made available to the Consular
Section.  An SAO request serves to centralize information
about potential terrorist activity and facilitate scrutiny
of a potential suspect.  Once the application has been
referred for an SAO, no visa may be issued until the
Department responds to the SAO request.

13.  Consistency: Most consular officers spend more time
applying section 214(b) than on any other section of law.
Careful interpretation and precise understanding of the law
makes our work better.  FSI's consular training division
has begun handing out to all ConGen students laminated
reference cards containing the texts of sections
101(a)(15)(b), 214(b), and 291.  Posts should keep those
sections of law and the FAM notes handy, and consult them
frequently.  Posts should also review local forms and
information sheets to ensure that they reflect and
articulate applicable law consistently.

14.  As noted earlier, the Department is reviewing and
updating relevant sections of 9 FAM.  The Department will
transmit further guidance when this review is completed.

15.  Minimize considered.