Post image for Burden of Evidence is on Those Seeking a U.S. Visa

Burden of Evidence is on Those Seeking a U.S. Visa

by Garland M Baker on April 16, 2007

Ticos have to wrestle with 55-year-old law

A trip to the U. S. Embassy before Semana Santa proved very interesting and enlightening. The visit shed light on a long-standing irritation for Costa Ricans.

An expat asked an embassy worker how he could expedite his Tica girlfriend’s tourist visa application so she would not have to wait in line. There were at least 100 visa applicants waiting to speak with a consular officer that morning. The embassy worker asked him if he wanted to speak with a senior consular officer. He said yes and sat down to wait.

The embassy was busy that day, but after about an hour, the man’s number came up and he went to the appropriate window.

Overhearing the conversation, what the senior official told the man was a surprise. He said that the immigration law has something in it called the “presumption of immigration” and the man’s girlfriend was just going to have to follow the same procedures as everyone else in applying for a tourist visa. A tourism visa is a class B1/B2 visa for a temporary visitor to enter the United States on business or pleasure.

The “presumption of immigration?” What is that?

Section 214(b) Immigration and Nationality Act states “Every alien shall be presumed to be an immigrant until he/she establishes to the satisfaction of the consular officer, at the time of application for admission, that he/she is entitled to a nonimmigrant status…”

This means anyone applying for a tourist visa is guilty — their intent is to stay in the United States — unless they can prove their innocence, meaning they are not going to stay. Most denials of visa application are due to Section 214(b).

Junior consular officers make their decision after a short interview where they evaluate if an applicant has “strong ties” to their home country. The officer bases the decision on subjective intent — the presumption of immigration with the burden on the alien to show that they will not stay in the United States.

What are “strong ties”?

A job, a house, a family and a bank account are just a few of the criteria that make up strong ties to a home country. They differ from country to country and individual to individual.

A consular officer is the judge and jury. He or she must weigh the facts and decide on the spot whether an individual can have a visa. There is no avenue for an appeal or judicial review. The official makes use of several databases which may show, for example, that the applicant already has a California driver’s license or has overstayed a U.S. visa in the past.

Upon visa denial, the only thing an applicant can do is to try again, presenting new convincing evidence of strong ties. And the applicant has to pay the $114 in fees again and probably will miss another day of work to attend the interview. Some consular officials say they will entertain informal appeals, but there is no formal process.

Some expats who have girlfriends or boyfriends in Costa Rica who do not qualify for a United States visa believe marriage is the answer to getting their companion into the United States.

This is a misconception. A spouse of a United States citizen must also file for the same temporary visitor visa for business or pleasure, class B1/B2 — as everyone else to enter the country. The same requirements apply.

This is true unless the alien plans to live in the United States with the United States citizen. In that case, the alien must file for a K3 non-immigrant visa. Again, the presumption is immigration so to file for a K3 visa, one must have an immigrant visa petition filed on his/her behalf by the U.S. citizen spouse. This is a lot of paperwork and approval takes time, so it is not a quick route to a visa.

The Immigration and Nationality Act is 55 years old — created in 1952 — covering the immigration, temporary admission, naturalization, and removal of aliens.

Many people believe Section 214(b) of the Immigration and Nationality Act is too restrictive and is hampering the United States’ scientific and economic competitiveness as well as security interests because it is also applied in considering student visas.

The system frequently results in bad public relations for the embassy like when a Costa Rican mother initially was denied a visa to attend the funeral of her U.S. Army sergeant son who was killed in Iraq. Repeatedly Costa Ricans complain of being denied a visa without any or an adequate explanation.

There is one fact beyond dispute. The embassy workers are in a difficult situation. It is evident by sitting in the waiting room and listening to the multitude of questions they are asked, most people do not have a clue what the United States immigration law is or does.

The United States Department of State’s Web site is very helpful and informative especially the section on visa denials.

The next time a Tico thinks about getting a United States visa, he or she should go to the Web sites above to help them put their paperwork together proving they have strong ties to Costa Rica and reflecting they have no intention of staying in the United States. The problem is, many Ticos believe the United States is the land of opportunity and have every intention to stay there if they get a visa and will abandon everything here to do so.

Leave a Comment

Previous post:

Next post: