There are three general statutory provisions upon which visa denials
may be based. They are Sections 212(a); 214(b); and 221(g) of the Immigration and Nationality Act.
Section 212(a) lists all of the statutory grounds of inadmissibility –
such as criminal misconduct, illnesses of public health significance, association with terrorist organizations,
prior immigration misconduct, and similar reasons. There is an in-depth explanation of these various grounds in
the
“Inadmissibility” portion of this site.
Many of the grounds of inadmissibility specified by Section 212(a) can
be overcome by waivers. Still, the presumption is that if a ground of inadmissibility applies, the applicant is
ineligible to enter the United States.
Section 212(a) applies to all foreign nationals seeking to enter the
United States: non-immigrants and immigrants alike.
Section 214(b) on the other hand applies only to nonimmigrant visa
applicants. It does not apply in cases involving applicants for immigrant visas (“green cards”). Section 214(b)
provides:
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“(b) 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). . . .”
This means that every foreign national coming to the United States is
presumed to be an intending immigrant. This, in turn, means that they must either show that they are a lawful
permanent resident (“green card” holder) of the United States, or that they are coming here for a highly specific
purpose and have a visa that is consistent with that purpose. Someone who wants to work here will not be allowed
to enter with a visitor’s visa. Similarly someone who intends to study here will not be allowed to enter with a
visitor’s visa.
It is because so many people either overstay or seek to change their
status shortly after they arrive in the US that consular officers and immigration inspectors give very little
credibility to bare statements of intent by applicants. They want to see strong circumstantial evidence that the
applicant is coming for a specific, temporary purpose and will return home with that temporary purpose has been
accomplished.
The final statutory provision is Section 221(g) of the Act. This
provision simply states that a visa may not be issued unless and until all required supporting documentation has
been submitted:
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“(g) No visa or other documentation shall be issued to an alien if (1) it appears to the
consular officer, from statements in the application, or in the papers submitted therewith, that such alien is
ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2)
the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the
consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other
documentation under section 212, or any other provision of law: . . .”
This section applies to both immigrants and nonimmigrants.
