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Myths about consular process for US visas — Part II

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By Michael Phulwani and David H. Nachman

There are a lot of myths and misconceptions that people have relating to the US visas. This is especially the case for Indians, who apply for visas and receives random denials on bases of 221(g) & 214(b). This is part II of the series of Articles about the common myths that relate to various types of visa processing.

My B-1/B-2 visa has been denied more than four times under Section 214(b) of the INA. I have provided all relevant documents and re-sponded to all questions properly, but the Consular official does not want to look at any documents and does not seem to give me enough time to explain my situation. I have requested my brother, who is a US citizen to contact a US Senator or Congressman to intervene and ask the Consul to issue the visa. I am sure then that the visa will be issued.

Fact: Under the law, the Consular officials have ab-solute discretion to grant or deny any nonimmigrant visa subject to Section 214(b) and/or 221(g) or other applicable provisions cannot be compelled by any authority in the US to issue the visa. In most instances, the Consular officials will politely respond to congressional inquiries. In general, the congressional liaison receives a form letter from the Consular officer that states that based upon the interview of the applicant, the Consular officer made the determination to deny the visa since the applicant was unable to demonstrate that he or she was eligible for the visa. However, the applicant may re-apply again. There are some cases where the Consular Official, upon review of the facts, may find that the visa should be issued.

My F-1 student visa has been denied by the American Consul on three different occasions. I intend to pursue my studies in an Ivy League School in the US My family is financially well and they have agreed to prove new sufficient funds for my study. Upon completion of my studies, I will definitely return (to India). I am very upset and I want to appeal to the concerned authorities in the US or to a Court of Law to compel the Consul to issue the visa.

Fact: The Consular official has absolute discretion to issue or deny the visa under Section 214(b) or 221(g) of the INA. The Department of State (DOS) in the US would generally not intervene in visa applications process, when visas are denied based upon the “facts.” However, if there is a misapplication or misinterpretation of the “law,” the DOS may provide legal guidance to the Consular official. For example, if a Consular official denies an   H-1B visa under Section 214(b) for the reason that  it appears that the applicant has immigrant intent, the DOS will intervene and advise the Consul that   H-1B visas is a dual intent   visa and that the applicant cannot be denied under Section 214(b). A general   rule, A Court of Law        in the US will not accept any legal action challenging Consular determination since the Court does not  have jurisdiction over the Consular officials abroad.

I have been denied a visitor visa twice and also an F-1 student visa, the third time. I think if I apply for H-1B visa or get married to a US citizen and apply for an immigrant visa, I would encounter problems due to the previous denials.

Fact: This is an incorrect assumption. Previous denials of nonimmigrant visas, which were subject to Section 214(b) cannot be the basis of a denial of an H-1B visa or other dual intent nonimmigrant visa, unless the Consular official finds that you are ineligible for H-1B visa or that the marriage to a US citizen is not bona fide, or the Consular official finds that the applicant is ineligible or the petition is invalid under appropriate provisions of the law. However, if there was any fraud or material misrepresentation made by the applicant in previous  visa application, the visa maybe denied under section 212(a) (6)(c) resulting in permanent bar to get any type of visa.

The United States sets a quota on visas to limit the number of foreign students entering the country.

Fact: This is a myth. There is no limit to the number of student visas issued by US embassies and consulates around the world. If you are a qualified student visa applicant, who has gained admission to bona fide US institution, the State Department wants you to pursue that opportunity. Recently, two schools in US have been rated and found to be fraudulent academic organization and unable to issue that valid I-20 forms, some of the students who obtained students visas based upon admission in such fraudulent institution, encountered serious problems after entry in the US. You should be sure that the academic organization is bona fide.

— To be continued