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Myths about consular process for US visas — Part I

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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 India who applies for visas and receives random denials on bases of 221(g) & 214(b). The following are a few of the myths that relate to various types of visa processing.

I can go on the Consular Web site to apply for the visitor’s visa, pay the visa fees after appearing for the interview at the Consulate (in India) and get a 10-year multiple entry visas.

Fact: Not so easy. Do not assume that the Consul issues visas to every applicant or that since you are a well-established businessman or someone who is financially well off, that you will automatically obtain a visa without any problems. B-1/B-2 Visitor’s Visas for pleasure or business, and many other types of visas, such as F-1 Student Visas, J-1 Exchange Visitor Visas, and certain other categories of visas, are subject to Section 214(b) of the Immigration and Nationality Act (INA), which provides that every applicant for such visa is presumed to have immigrant intent and, therefore, must prove that he/she has no intention of abandoning his/her permanent residence in his/her home country. Therefore, the applicant has to satisfy the American Consul, that he/she has strong family, economic, and social ties in his/her home country, which will compel him to return to his/her home country and not remain in the US beyond the authorized stay granted by United States Citizenship and Immigration Services (USCIS) or violate his/her nonimmigrant status. The burden is upon the applicant to overcome this statutory presumption and failure to do so, may result in denial of the visa. The American Consul can also deny the visa based upon section 221(g), which is temporary denial requiring the applicant to submit additional information or document to overcome the presumption of immigrant intent or meet the eligibility requirements. In some cases, denial u/s 221(g) is to keep the application pending until Admini-strative Processing requiring verification or investigation of certain facts to complete the processing. In some instances the application is kept pending until security clearances are completed by the concerned authorities in the US.

I am applying for the Visitor’s Visa at the Ameri-can Consulate (in India). I am working in a company for many years, own a substantial property, and financially well off. I will take all these documents and the visa will be granted to me without any question.

Fact: Do not assume that you will be issued the visa based upon the documents you plan to submit. We are given to understand that most of the consular posts (in India) do not look at the documents that the applicant brings with him/her to the consulate in all the cases. Most decisions to grant or deny the nonimmigrant visa are based upon the interview rather than the documents. It is advisable to take all relevant documents evidencing that you are a type of person, who will not remain in the US longer than required and comply with all the conditions of the visa. However, present the documents only if requested by the Consul. Consular officers are overwhelmed with processing hundreds of such visa applications everyday and, in most cases, devote three to four minutes only for the interview. For example, we are given to understand that the Consulate Offices are entertaining approximately 1,400 visa applications a day in Mumbai. You should be fully prepared to answer appropriate questions truthfully and promptly within the two or three minutes you have at the window. We are given to understand that what is critical for the visa applicants is to be able to “articulate” what it is that you are going to be doing in the US.

I applied for the US Visi-tor’s Visa at the American Consulate and it was denied by the Consular Officer under Section 214(b) of the INA. However, the Officer advised me that I can apply again. I believe that if I take some more documents to prove that I am well settled (in India) and will come back (to India) within four to six weeks after visiting my friends and relatives, the Consul will then issue the visa.

Fact: Do not assume that when you re-apply for the visa with more documents, you will have no problem obtaining the visa. Please remember         that after the first denial, any subsequent applications  result in denials in most cases, unless the applicant can show that there is change in the circumstances which: warrant reconsideration and issuance of the visa. The first question that the Consul may ask is, “We made the decision during the first interview that you are not eligible for the visa. So, what is new to overcome the reasons for your previous denial and to issue the visa?” If you believe that you really are a bona fide nonimmigrant visa applicant and that you were denied the visa the first time, due to some misunderstanding or failure on your part to explain the purpose of your visit or your background, which will compel you to return to your home country, you should articulate this information promptly, to convince the Consul that you are eligible to obtain the visa.

— To be continued