I’ve been asked several times today about how the spouse of a U.S. citizen expat can apply for a B1/B2 (visitor for business or pleasure) visa. The question typically goes something like this:
I am a U.S. citizen. I have lived in China for 5 years. My wife has been denied a U.S. tourist visa twice, once before and once after we married. We rent an apartment here, she has her own business, and I am employed as an engineer for Ford. We don’t want to apply for a green card because we plan to continue to live in China for the foreseeable future. We just want to visit the U.S. For the first visa application, I wanted to introduce my then fiancée to my parents. (My father has since passed away). For the second visa application, I wanted to bring my wife to Boston to attend my brother’s wedding. Is there anything you can do to help?
Here are just several points:
1. Your spouse probably received a boilerplate refusal notice stating that a consular officer must deny a B1/B2 visa application if not persuaded that the applicant intends to visit the U.S. temporarily, has strong ties to their home country such that the applicant will be compelled to return home after that temporary visit, and will comply with the terms of their visa. This is according to section 214(b) of the Immigration and Nationality Act.
2. Often, spouses of U.S. citizens are denied by consular officers trying to prevent “abuse” of B1/B2 visas by spouses seeking to move to the U.S. rather than just visit. That’s a common problem because it’s quicker and cheaper to get a B1/B2 visa than to get a green card.
3. So to prove that the foreign spouse is not moving to the U.S., the citizen should also prove his or her strong ties abroad, such as proving employment, home ownership or lease, assets, and/or social ties abroad. These ties are evidence that the foreign spouse is not likely to move to the U.S. Proving strong ties can sometimes be difficult. For example, if the citizen spouse is not employed abroad, doesn’t have a long-term visa, or just moved abroad. Also be prepared to prove it’s a valid marriage by submitting a photo album, evidence of children born of the marriage, evidence of commingled finances, etc.
5. Beware that the 214(b) ground of denial can be for more than just failure to prove strong ties abroad. As mentioned above, the officer must be persuaded that the applicant will comply with the terms of the visa. For instance, a 214(b) denial may result from an interview where the consular officer found the applicant to lack credibility due to giving vague answers to the officer’s questions. Or from an interview where the officer learns the applicant violated the terms of a prior visa. Not all applicants–or even their lawyers–get this point. See 9 FAM 302.1-2(B)(6) (“More Than Just Ties”).
6. The consular officer won’t be moved by the importance or urgency of your U.S. travel. To qualify for a B1/B2 visa, you need a legitimate reason for travel, such as tourism or a family visit, medical reasons, participation in a social event, engaging in commercial transactions, consulting with business associates, etc. Visiting the citizen spouse’s dying father or attending a family wedding certainly are legitimate reasons. But no matter how important or urgent your need for travel, the officer will still refuse the application if section 214(b) applies.
7. The identity of U.S. citizen spouses is relevant to the extent that they are known to the consular post because that makes their assertions more credible. But there’s no free pass. I’ve seen B1/B2 visas denied to the spouses of the president of the country’s American Chamber of Commerce, high-ranking members of the U.S. military, and executives at multinationals.
8. It’s critical that the foreign spouse not misrepresent to immigration authorities the true purpose of a trip to the U.S., hide the marriage to a U.S. citizen, or misrepresent information about whether the green card process has begun. This could amount to fraud or misrepresentation, which is a legal ground to deport a noncitizen and permanently prohibit readmission. If a consular officer or a U.S. Customs and Border Protection Officer at an airport or other port of entry determines that an applicant has willfully engaged in fraud or misrepresentation, the applicant may be denied a visa or “summarily removed,” meaning that the applicant is deported from the U.S. with no hearing before a judge.
9. If you’ve been denied the B1/B2 visa already, you know that the interview conditions can be difficult. The applicant has the burden of proof, meaning the responsibility to prove their eligibility. Section 214(b) says that the officer must “presume” you are ineligible unless and until you prove otherwise. Yet the interview can be as short as 1-2 minutes, so you don’t have much time to explain your case. Nor do officers have time to review many documents. This week, one applicant complained that she handed a whole folder of documents to the officer but the officer refused to look at any of them. Officers have neither the time nor the inclination to review a mass of documents. Officers are trained to believe that any document can be forged and that how the applicant handles the interview is more important than any documents.
10. Here are some of the ways that our law firm prepares for the difficult interview conditions. (Of course, our strategy differs according to the specifics of each case). In the Form DS-160, Nonimmigrant Visa Application, we use the question about prior visa denials to explain why this time the application is approvable. We commonly have the U.S. citizen spouse submit an invitation letter that we help to draft. Most importantly, we help the applicant prepare for the interview so he or she can anticipate what questions are likely to be asked and can plan how to answer in a way that is truthful and helpful for the case.
11. Applying for a family-sponsored green card is not necessarily a cure after being denied a B1/B2 visa. While the foreign spouse need not prove any intent to reside in the U.S. in order to qualify for a green card, still the U.S. citizen spouse must ordinarily prove “domicile” in the U.S., meaning that not later than when the foreign spouse immigrates the citizen spouse must make the U.S. home most nights with the intent to remain so for the foreseeable future. There are two notable exceptions to the domicile requirement. First, it does not apply if the citizen spouse can file a Form I-864W instead of a Form I-864, Affidavit of Support, on the basis of Social Security credits earned by the citizen spouse during the marriage, by the foreign spouse, and by the foreign spouse’s parents. Second, it does not apply if the U.S. citizen spouse is employed abroad by one of the following types of entities: (a) the U.S. Government; (b) an American institution of research recognized as such by the Attorney General “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”; (c) a public international organization in which the United States participates by treaty or statute; or (d) is a minister, priest, or missionary. In fact, if the citizen spouse is working for such an entity, the foreign spouse may qualify to apply for expeditious naturalization under section 319(b) of the Act immediately after getting a green card.
12. If you would like to schedule a consultation with our firm after a B1/B2 visa denial, we typically want to know as much as possible about the prior application(s). If you can, provide a copy of the Form DS-160; the appointment letter; any invitation letter shown to the consular officer; and a list of the questions asked by the consular officer with your responses.