INA Sec. 214 (b) Based Refusals of Nonimmigrant Visa Are not Equivalent to Inadmissibility

There is a recurring confusion over the implications of section 214(b) [see article] and 212(a) [see article] of the Immigration and Nationality Act. Both sections, although similar in their outcome-precluding entry into the U.S.-apply to different circumstances. A refusal under section 212(a) is comprehensive in nature because it precludes this individual's entry into the United States unless such inadmissibility is overcome. Once an applicant is refused under 212(a) of the Immigration and Nationality Act, the applicant is deemed “inadmissible”. This means that the applicant has been denied entry into the U.S. This section applies to both immigrant and non-immigrant applicants. This denial of entry can only be overcome by the passage of time for whcih the entry is precluded, when such restriction is temporary or a waiver of inadmissibility prior to the passage of time or when the restriction is permanent as is the case, for instance, under INA Sec.212(a)(6(C)(i) with inadmissibility for fraud and/or misrepresentation.

Conversely, section 214(b) of the Immigrant and Nationality Act deals with the denial of entry into the U.S. as a non-immigrant. This section, however, is trickier in its application. Unless classified as a non-immigrant in any of the provisions of the Act, all applicants are presumed to be immigrant until deemed otherwise by the consular officer. Unfortunately, this leaves much room for confusion and discretion, leaving the possibility of a non-immigrant applicant getting refused for failure to proactively and properly identify him/herself as a non-immigrant. There is also a danger that the consular officer can deny non-immigrant visas for spiteful reasons. Consequently, a non-immigrant can be classified as an immigrant before the consular officer, and therefore not eligible for non-immigrant visas under section 214(b).

Furthermore, there is also the issue of understanding a refusal under section 214(b) and outright inadmissibility under the Immigration and Nationality Act. It is important for applicants, consular officers and attorneys to discern the difference. A refusal under the section 214(b) does not necessarily imply a refusal under section 212(a). Nonetheless, a refusal under section 212(a) may, in fact, entail a refusal under section 214(b) as well. For example, an applicant who wishes to seek entry into the U.S. from a foreign country under a non-immigrant visa may be denied entry for failing to provide sufficient evidence of ties to his/her home country. So, can the applicant still receive legitimate entry in to the U.S.? Possibly. The applicant may be eligible for a visa as under immigrant status. It is up to the applicant to make sure they seek appropriate counsel.

On the bright side, there is ongoing review of the statutes and provisions that relate to these matters under the Immigration and Nationality Act. For example, there is a stronger emphasis on the manner in which consular officers determine eligibility for immigrants and non-immigrants alike under these provisions. It is important for applicants to proactively seek eligibility under the appropriate provision and if unsure seek appropriate legal counsel.