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US Visa Denial

Although never an issue that applicants wish to discuss, United States visa denial can occur. Understanding the reasons for visa denials, delays, and refusals can equip prospective applicants with information which could improve their chances of application approval.

There are a number of ways in which a United States visa application can be delayed or denied at the United States Embassy in Bangkok, Thailand. Below are some of the most common denial scenarios for applicants in Thailand.

Denials of Non-Immigrant Visas: Section 214b of the US Immigration and Nationality Act

Each year, the US Embassy in Bangkok, Thailand process hundreds of non-immigrant applications for the US Student Visa, the US Tourist Visa, and the US Exchange Visitor Visa. In non-immigrant visa cases a common method employed by Consular officers to deny a non-immigrant visa is use of the powers granted under section 214b of the United States Immigration and Nationality Act. This section of the act creates a presumption of immigrant intent that must be overcome by the non-immigrant visa applicant before a visa will be issued. One must prove strong ties to Thailand (or another country outside of the USA) and weak ties to the US. For example, in many cases involving applications for a US tourist visa, applicants will often be denied if they have a US Citizen fiance, fiancee, boyfriend, girlfriend, husband, or wife. The reason for the denial is usually due to the fact that the existence of a strong personal relationship with an American acts as a mitigating factor against overcoming the presumption of immigrant intent.

Denials of Visas Under Section 221g of the US Immigration and Nationality Act

One of the most common types of visa denials in K1 visa, K3 visa, CR1 visa, and IR1 visa cases is a 221g refusal. This designation refers to section 221g of the United States Immigration and Nationality Act. Under this provision of United States immigration law, a Consular officer is empowered to refuse a visa if there is not sufficient evidence to warrant issuance. Strictly speaking, a 221g is not usually an outright denial, but instead it is a denial pending further evidence or documentation.

Factual Denial and the Doctrine of Consular Non-Reviewability

An outright visa denial is usually rare in US family visa (K1, K3, CR1, and IR1) cases at the US Embassy in Bangkok. Although more common at other posts, the Embassy in Thailand seriously weighs all evidence in a visa case and will usually ask for more documentation rather than summarily deny the visa. However, this does not mean that denials do not occur and if a Consular officer finds, based upon the facts, that there is no reason to issue the visa, then the visa application will likely be denied. In situations where a Consular officer makes a factual finding regarding a visa application, the officer’s decision is effectively un-appealable pursuant to the Doctrine of Consular Non-Reviewability (sometimes called the Doctrine of Consular Absolutism). For this reason, presenting a solid case at the outset is very important.

Visa Denials Based Upon Legal Grounds of Inadmissibility

Although Consular Officers may deny a visa based upon the facts in a case, a more common reason for denial is that a legal grounds of inadmissibility exists which bars the applicant from obtaining a visa. Under the Immigration and Nationality Act there are a large number of legal grounds of inadmissibility which could preclude a visa application’s approval. Common grounds of inadmissibility seen in Thailand are Prostitution, Overstay, Financial Hardship, and Communicable Disease. For each of these Grounds of Inadmissibility there may be an I601 waiver available (I601 refers to that section of the Immigration and Nationality Act). However, in order to be granted a waiver, the US Citizen (or Lawful Permanent Resident) Petitioner must show that failure to grant the waiver would result in an extreme hardship. In cases involving communicable disease, a showing that the disease has been cured is an effective method of overcoming the inadmissibility. In cases involving incurable diseases such as HIV, the Petitioner must present a great deal of evidence to show that the foreign fiancee or spouse will not become a public charge if admitted into the US (at the time of this writing, lawmakers are in the process of removing HIV from the list of diseases that bar admission to the USA).

For those unsure of how to deal with the US Immigration process, consultation with an Immigration attorney can be very beneficial as Immigration options can be ascertained prior to the submission of an application. Further, if a ground of inadmissibility exists, then foreknowledge of the legal consequences can prepare the applicant and provide time for the attorney to develop a strategy for presenting a strong I601 waiver application. Finally, expert assistance could forestall the issuance of a 221g denial.

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