A recent exchange between the Department of State (DOS) and American Immigration Lawyers Association (AILA) around E visa adjudications, illustrates some important points about the application of INA§214(b).
What are the primary points?
- Enhancing the Adjudication of E Visa Applications:
Process Improvements: DOS is actively engaged in developing processes to refine E visa adjudication. AILA has asked for updates on the actions or plans to develop a centralized knowledgebase available to consular officers and whether remote processing is being considered as a relief measure at overstressed posts (such as Ankara).
Operational Priorities: Centralized Knowledge Base: DOS has been in the process of creating what effectively amounts to an institutional knowledge base intended to support consular officers (and provide some predictability for practitioners). However, AILA would like more details on how this will be done.
- E Visa Company Registrations Decentralised:
No Centralized Repository for Company Information: U.S. embassies and consulates each maintain their own system of E visa company registrations). What this does is if a company has been registered in one post and an executive or employee, decides to apply at a different consular post—then the new post will have to do its very own evaluation of these companies.
Challenges for Applicants Seeking Flexibility: While DOS allows E visa applicants to apply at any post that accepts them, the lack of a global repository muddies this ability. Some variation and potential inconsistency can occur as different posts re-evaluate qualifications for the same company with new applicants.
- INA§214(b) & Presumption of Immigrant Intent:
Inconsistent Application: AILA has expressed concerns with the application of INA§214(b) generally by DOS, which provides that nonimmigrant visa applicants are “intending immigrants” unless they can persuade a consular officer otherwise. The FAM language goes on to say that applicants are “presumed” not eligible for a nonimmigrant visa, which AILA surmises results in an unwarranted extra burden born out of the brain and intent factory.
AILA Request for Revision to FAM: Furthermore, AILA has once again urged that the Foreign Affairs Manual be revised so as not to create this additional presumption of ineligibility and more closely hew to the statutory language of INA§214(b). DOS responded by stating that its performance measures will be reviewed in conjunction with the pertinent FAM guidance.
- Use of 214(b) refusal notices inconsistent:
Refusal Explanations Vary by Post: AILA has noted a lack of uniformity among Consular Posts in issuing refusal notices for 214(b) denials. The FAM makes a discrete category for refusals made on these grounds to the exclusion of other types, but they are not always enforced that way.
This inconsistency generates confusion among candidates and they struggle with understanding why their application was denied and how to correct any deficiencies in subsequent applications. DOS told AILA confirmed that officers should use the proper refusal letter because it includes notice to applicants at risk of a possible bar.
- Transparency in Consular Deportations
No notification system for returned petitions when a petition-based nonimmigrant visa is denied under 214(b) it may be sent back to USCIS, but there was no established process by which officers notified the petitioner or representative and processed weblink.
Tracking the Petition Status: This may result applicants and their representatives in loss of tracking on where are they with such petitions, hence causing more communication from and to USCIS. To alleviate them, AILA has requested further clarification on the consular returns process.
Summary of the Issues:
The overarching issues revolve around the need for greater consistency, transparency, and efficiency in the E visa adjudication process and 214(b) refusals. DOS is making efforts to improve processes, but AILA’s feedback underscores areas where further clarity, streamlined procedures, and alignment with statutory requirements are needed to reduce burdens on visa applicants and ensure fair evaluations.