“What has Changed Since Your Last Interview?” Consular Abuse of 214(b)

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Have you ever been refused a visitor (B) or student (F) visa and re-applied again a short time later, and when you attend your new interview, the consular officer asks you: “What has changed since your last interview?”  And within seconds or a minute or two, the consul then handed you a refusal sheet – again?  The funny thing is – well, it is not-so-funny – there is no such legal requirement to show that something changed in your circumstances in order to qualify for the visa. The Department of State and the consular officer concocted this “requirement” out of whole cloth: it’s fictitious.

Section 214(b) of the Immigration and Nationality Act has two requirements for B and F visa applicants: 1) overcome the presumption that he or she is an intending immigrant to the United States; and 2) qualify for the visa.  To qualify for a visitor visa, the B visa applicant must show that 1) the trip is legitimate – for business or pleasure or medical-related; 2) the trip is limited in duration; and 3) he or she has a “foreign residence” – often interpreted to mean “strong ties” to the home country – to assure his or her timely return.  That’s it.  Where does it say that you need to show that your circumstances changed since your last visa application?  It does not.

To qualify for a student visa, the F visa applicant must show that he or she 1) has been accepted to a school and issued an I-20; 2) intends to enter the US solely to pursue a full course of study at an approved institution; 3) has the present intent to leave the US at the end of the studies; 4) has sufficient funds to meet the financial needs; 5) qualifies for the course of study; and 6) has a residence abroad that does not intend to abandon. That’s it.  Where does it say that you need to show that your circumstances changed since your last visa application?  It does not.

In fact, the Department of State has acknowledged that making the visitor or student visa determination is “subjective”: one person could come to one conclusion, one person could reach another.  One consular manager, when referring to her time in a developing country, stated: “A consular officer, half of everything that you issue… [is] probably the wrong decision and half of everybody that you refuse is probably the wrong decision.  You can’t go to sleep at night worrying about it too much.” Often, the 214(b) determination is a mind-reading exercise into the credibility of the applicant and it is difficult to weigh such credibility.

That hasn’t stopped the Department of State from creating a visa conveyor belt.  Because of the large number of visa applicants and few visa officers, local embassies and consulates and the Department of State have put into place various mechanisms to streamline the process.  Although there is a prohibition on profiling visa applicants, consular officers nevertheless use a mental checklist to screen applicants.  In addition, to maintain uniformity in their decisions and prevent favorable “consul shopping” or “consulate shopping”, consular officers, when encountering a previously-refused visa applicant, automatically assume that their colleague got it right the first time. To expedite such adjudication, the consular officer will immediately jump to the $64,000 question: “What changed since your last interview?” The Department of State pocketed your application fee – and the final decision had already been made before you even got to the window.

Motivations for re-applying for a visa shortly after a refusal vary. You may really want or need to visit the US – it may be important for your career to attend a conference, or to take your kids to Disney World or to visit a dying relative. It may be critical for you to study in the US – getting a US college degree or an MBA may mean a substantial increase in salary or a scholarship was awarded.  It may be a matter of principle or honor for you or your personal circumstances are already ideal and might not get any better.  So if you believe that the first officer made a mistake or didn’t review certain circumstances or misunderstood you, you want to try again. And so when the second consular officer jumps right to the question designed to weed you out – to deny you – it is demoralizing, debilitating, and in fact, not in accordance with law.

If the above situation happened to you, please write to us at white@bridgewest.com with details.