Friday, September 18, 2015

Cases of F2 being denied - Do such visas depend on "luck"?

Recently we have noticed a surge in denials of  F2 visas (dependents of F1 student visas) at the US consulate.  Most of the denials are based on the INA 214(b).

What is 214(b)?

Under 214 (b),  every alien 10/ (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) . An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288, note], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and su bstance as is prescribed by section 247(b) .

Based on INA 214(b), it is clear that the applicant (aka alien), has to show that they are not immigrant on applying for visas such as F1, F2, or B1/B2 visas.  While it might seem obvious to some to prove that the intent is not to immigrate, the challenge is actually to prove that the applicant has ties to his or her home country. 

Applicants should actually be ready to prove that they will return to their home country after they use the visa including the F2 visa.  As such the applicant should show things such as properties in their home country, a job awaiting for them when they come back, business owned, and so on.  There are no definite ways to prove that there is no immigrant intent. However, based on the discretionary powers of the US consulate officer, the adjudicating officer will actually determine if he or she wants to grant a visa.

The problem is usually the discretionary powers involved. In fact, it does not always follow logic. One might think that if one has all the necessary documents to prove ties to their home country they will be approved. But alas, this is not always the case.  In fact, some might obtain a non immigrant visa even without proving a lot of ties to their home country while some might be denied even they can demonstrate a lot of ties.  

As such the obtaining a F2 visa might actually depend more on your luck rather than anything. One of the options is to involve a congress person in the case but even then, it seems that "luck" is usually the controlling force in F2 visa applications.

If you need help or a consultation on immigration cases, feel free to call us at 510 7425887