Immigration law defines an immigrant visa as a type of visa document allowing a foreign citizen to enter into the U.S., eventually applying for lawful permanent residency. Immigrant visas are characterized by the applicant’s general intent to permanently relocate. This is in contrast to other types of non-immigrant visas, or temporary visas, in which the applicant only intends to stay temporarily. The most common examples of this would be student visas or temporary work visas.
An applicant for nonimmigrant status must show that they do not intend to stay or live permanently in the United States. There are certain factors that may exclude an applicant from receiving a temporary visa, such as a criminal felony record.
The number of temporary visas issued each year may be subject to change. Additionally, the availability of temporary visas sometimes depends on the applicant’s country of origin. And, the number of visas allowed for certain countries may depend on the number of visas issued in the previous year.
The two main temporary visa categories cover the largest number of temporary visas issued each year, which are non-immigrant workers and non-immigrant exchange students. Generally speaking, non-immigrant workers or exchange students must be petitioned by a sponsor. This sponsor is the person who will assist them in obtaining their temporary visa. A worker’s sponsor would most likely be their employer, while a student’s sponsor would most likely be the educational institution in which they are receiving their education.
Why Was My Temporary Visa Denied?
Foreign Service Officers (“FSO”) are responsible for evaluating visa applications. When doing so, they seek out any potential security risks. Additionally, they are searching for information that would support the possibility that an applicant is applying for the temporary visa in order to bypass the official immigration process by simply overstaying their visa.
Some examples of what an FSO considers include, but may not be limited to:
- Travel plans;
- Financial resources;
- Familial, friendship, and/or business connections to nations outside of the U.S.;
- Other various personal circumstances;
- How long an applicant has lived at their current address;
- The amount of time in which an applicant has kept their current job; and
- Whether they or their children are enrolled in school.
To summarize, the FSO is searching for any commitments that would prevent the applicant from moving away from their own country in order to live in the U.S. permanently.
If you are denied a temporary visa and are cited Immigration and Nationality Act (“INA”) Section 214(b), that means that you:
- Did not sufficiently demonstrate to the officer that you qualify for the nonimmigrant visa category that you applied for; and/or
- Did not overcome the presumption of immigrant intent. This is required by law, and refers to sufficiently demonstrating that you have strong ties to your home country. It is assumed that if you have strong ties, you will be compelled to leave the United States at the end of your temporary stay.
When you are applying for a travel or temporary visa, you are burdened with proving every requirement necessary in order to obtain a visa. If you are unable to do so, the officer will most likely deny your application.
It is important to note that If your visa denial cites 214(b) as a reason, you still have the opportunity to appeal the decision. Doing so would require that you do your best to provide documentation showing that you are not a security risk, and that you fully intend to return to your home country at the conclusion of your visa. Make sure to bring along any other documentation that will show the strength of your ties to your home country.
A visa denial is not permanent. This is due to the fact that even if your appeal is not successful, you can apply again at a later date. In some cases, time is the only way to “cure” your visa application, especially if you are new to your country of residence. This is further discussed below.
Can I Reapply For a Temporary Visa in Another Country?
If you applied for a temporary visa while in a country that is not your homeland, the FSO who evaluated your application may not have had enough information to make a reasonable determination. This would be one of the common reasons for visa denial. It is important to note that a denial of your application in one country does not completely eliminate the possibility of a new application in another.
However, you will need to remember that your application will be evaluated based on your ties to the country in which you submit the application. As such, if you live in Brazil, you are more likely to be successful if you apply for a U.S. visa at an embassy or consulate in Brazil than you would be if you applied in Argentina.
Similar circumstances would be if you are a recent immigrant to the country in which you applied. You may not have sufficiently strong ties to your new country, and could be viewed as someone trying to immigrate to the U.S. illegally. As previously mentioned, the only remedy to this is time. The longer you live in your new homeland, and the stronger your ties there, the more likely it is that your temporary visa application will be approved should you apply again.
Do I Have Any Other Options?
When an applicant is deemed to be inadmissible, they may be able to apply for an inadmissibility waiver. One example of an inadmissibility waiver would be the Hranka waiver, which eliminates the need to file a new application. If granted, this waiver will allow the applicant to enter the U.S. despite the inadmissibility grounds.
Inadmissibility waivers can often be quite specific and difficult to obtain. A Hranka waiver is applicable to many different types of inadmissibility cases. It is a discretionary waiver, which means that it is up to the immigration authority’s discretion whether to grant the waiver. By using a Hranka waiver, the immigration official may decide to let the person enter the U.S. based on a number of factors that they must consider. These factors include:
- Any risks of harm to society should the applicant be granted a Hranka waiver;
- The seriousness of the applicant’s previous criminal records or immigration violations, if that is what caused them to be considered inadmissible; and
- The nature of the applicant’s reasons for seeking a temporary visa to enter the U.S.
Hranka waivers may be denied for many reasons. An example of this would be if the immigration panel decides that the applicant’s criminal record involved crimes of a serious nature. However, granting the waiver can also be based on the totality of the factors surrounding the applicant. Finally, it is important to note that immigration law does not require that the applicant’s reasons for entering into the U.S. be “compelling” in order to obtain the waiver. To put it another way, social visits can often constitute a good enough reason to grant the Hranka waiver.
Hranka waivers are so named because they are based on a past immigration case, Matter of Hranka.
Do I Need an Attorney For a Denial of Temporary Visa?
If you are wanting to apply for a visa, or have been denied a temporary visa, you should consult with an experienced local immigration attorney. An experienced immigration attorney can help you determine which immigration visa you should apply for, based on your intentions, as well as which visa you qualify for.
If you are denied a temporary visa, your attorney can help you gather necessary evidence to prove ties to your homeland, or whatever else you need in order to file an appeal. Finally, an attorney will be able to represent you in court as needed, should any other legal issues arise.
