How to Visit the United States Without Getting Denied Under INA 214(b)

    DALLAS, TX, August 19, 2010 /24-7PressRelease/ -- In the midst of summer, thousands of people are denied entry into the U.S. under INA 214(b), and may not be able to return for years to come, some never. That section of law deals with intending immigrants, or people who want to live in the United States. It basically states that if you intend on living in the U.S. you cannot enter as a visitor. Most people do not know of INA [Immigration and Nationality Act] 214(b). Some people, intending on complimenting the immigration officer about living in the U.S., get themselves barred and find themselves in custody. This article will examine what it takes to visit the United States and how to avoid severe penalties for going about it the wrong way.

The improper application of INA 214(b) is a constant issue and its misapplication is in many ways a shame as everyone loses. The officer has to deny entry to the person in the name of caution. However, some officers interpret it too strictly. The flip side is that a large number of the people are not intending immigrants. We, as a country, lose out on not only valuable travel dollars, but the opportunity of knowing these adventurous people and we end up alienating them and their friends. We are in one of the few countries where telling an officer you love his or her country and would like to someday live there can keep you barred from even visiting. The big problem with INA 214(b) is that the world isn't warned about it before coming to the US. People don't know about it and they don't understand it. Visitors can't possibly know all of the code sections of the most complex area of law in the world yet are expected to, as the laws are held against them. In addition, people have less protection than in a criminal situation. Penalties are severe and often permanent. Often, a person's intent and words conflict, and the person ends up in big trouble in a matter of minutes.

Basically, we have this strange application of the law in the United States wherein an intent to remain in the United States gets you barred from most visas, even if there is not immediacy to it. The reason I state strange is because is forces people to lie. Someone may go to the United States to study with the intent of getting a feel for the country and possibly living there in the future. If he or she is honest with the immigration officer, it will lead to denial of the case. The person is forced to lie in order to obtain a student visa. If the person is unfortunate enough not to know about INA 214(b), and was not warned, a simple sentence such as "I love this country" is enough to get the person an INA 214(b) and they could be, although not technically, but in reality, virtually barred for life. Many people, states globally-recognized US immigration lawyer and negotiator Steven Riznyk, who go to school here or open a small business here do so because they are exploring a life in the United States, but they have to lie to enter.

A code section 214(b) denial of entry keeps a person from entering not only on this occasion, but on future occasions. In reality, despite what it states, it's not simply a one-time denial of entry. Once an officer has determined that a person is an intending immigrant, or intends to live in the United States, that person will be denied entry under INA 214(b). If the person flew, as opposed to drove to the United States, that person would be held in custody until the next plane back became available. The next time that person tries to enter the United States, the officer will examine the person's record and observe that the person was denied under INA 214(b), and if he or she has any doubts about the person's entry, the person will be denied again. Steven Riznyk states "we have potential clients call us with INA 214(b) records who have never been able to re-enter the United States again, after many years of trying."

Visiting the United States usually takes place with a visa waiver or an actual visa. Persons from most countries require a visa to enter. However, the government has conducted an analysis of which countries overstay less than others, and those 36 countries with the lowest proportions of overstays have been allowed the privilege of entering with a visa waiver. A visa waiver is like a visa but offers some advantages and some disadvantages. The eligible countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Mlata, Monaco, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, and Switzerland.

In order to enter on a visa waiver, you have to take two steps. First, as of January 20th, 2010, everyone must comply with ESTA, the Electronic System for Travel Authorization. All registrations after September 8th will cost only $14.00 and payment can be made by credit or debit card; most authorizations are valid for 2 years and for multiple entries. The next part is enrollment in the US-VISIT program on arrival to the United States; this is a biometric identification system.

The second step is that on the airplane, they will be offered a green I-94W (arrival-departure document, which is being phased out) and they present this to the officer. The visit can be for business or pleasure, but cannot exceed 90 days. In order to remain longer, the only exception is marriage to a U.S. citizen as long as you did not anticipate getting married when you made the entry. You are unable to have a Change of Status (which means change to another visa), which is a problem for people who seek to become students or investors. The other problem you have, states Steven Riznyk, is that if you are denied entry, you do not have the right to either challenge or appeal the decision. So, if the officer for some reason mistrusts you or feels you will remain longer, you won't even step foot in the United States. More than ever, states Mr Riznyk, it's important to bring proof with you that you have the money to fund your trip and that you intend to leave. This is especially difficult for young people and those of lesser means, states Mr Riznyk, because both groups may not own real estate or have long-term careers. If they are from a poor country, then proving they have sufficient assets can prove even more difficult.

The second way of entering the United States is with a visa, a B-1 (visitor for business) or B-2 (for pleasure). Again, states Steven, the problem with those is that people do not understand what business or pleasure means in an immigration context; as a result they may seek to do something the officer feels is not in compliance and be denied entry. The problem with being denied under INA 214(b) is not so much that you are denied on that occasion, but the fact that you will most likely be denied in the future as your credibility will always be at stake. The only way to repair this problem is to have an immigration lawyer prepare a legal brief (a document that applies cases and law to the facts of your case) in order to explain your situation in great detail and present cases that support your position. It is also a good idea to file one with a new application as soon as possible as the more time passes by, the more your credibility will be at issue.

The other section to be aware of, that is often triggered along with 214(b), is 212(a)(6)(C)(i) which deals people who make fraudulent or willful misrepresentations to obtain a visa. This is an are that requires much caution because sometimes the way something is stated or the spin added to a story can make it seem like it is not true, leading to a visa denial. Again, caution is necessary when explaining your situation; use clarity and bring proof as language usage, accents, and customs that are different can lead to problems you couldn't begin to imagine, states Steven Riznyk. Sometimes a person will say something but mean something else by it. A sensitive officer could misinterpret this to be fraud and that would end everything right then and there.

In order to obtain a B visa you must go to the U.S. consulate or embassy in your country, along with the forms and filing fee, and present your case. If you are seeking a B-1 visa, explain the nature of your business. For example, if you are going to scout businesses for possible investment purposes, then bring a business plan if you have one, show copies of bank statements, and proof of residency (current utility bills, mortgage, etc) to demonstrate an intent to return. Keep in mind if you are from a visa waiver country, it is harder to obtain a B visa. They will wonder why you intend on staying longer than three months (with a B visa you can remain up to 6 months' time and even renew it, in addition to applying for a Change of Status as mentioned above).

When it comes to a B-2 visa for pleasure, it is intended for just that. You can come here to vacation, to visit relatives (who are usually not first-degree), visit a doctor, or, if the officer believes you, states Steven Riznyk, you can even enter to meet the family of your fiance/fiancee, to get engaged, or make arrangements for your wedding. However, these last few case examples are very difficult to win and you don't want to lose a lot of money on airfare as well as letting down all your friends. Again, it may be a good idea to present a solid case when you are at the border because these are not the types of events that are normally approved for entry. There are two parts to these transactions as well. First, you have to be issued a B visa by the consul, and then you have to be let in the country by the immigration officer.

In most embassies and consulates you are not allowed to bring an immigration lawyer. In some, he or she can enter but not speak. Each consul can set up their own rules, and change them as they wish. The best advice, states Steven Riznyk, is to prepare in advance and make a good first impression. Bring more evidence than you think they need so you can prove that what you are stating is true and accurate. Most importantly, bring proof that you will return to the United States once your trip is complete. Whether that looks like a career in your country, family or children left behind, a business you are running, real estate you own, or anything else that can prove you will return will go a long way in getting you to visit.

We hope that one day INA 214(b) is clarified, sub-divided, or repaired. As of today, this visa is subject to much interpretation and there is little uniformity in how it is applied. What works in one post will not work in another simply because the officer interpret its differently. In essence, that is one of the problems with our immigration system; a lack of uniformity. The same case can go to 4 different posts and you can have 4 different outcomes. We hope that next time you apply for your B visa or Visa Waiver you are one of the lucky ones!

Steven Riznyk has been involved with immigration law for 22 years. He is the author of the first DVD program to explain US Immigration law to the public in simple language; it available in both English and Spanish at www.US-Immigration-Explained.com. He also practices law with a limited number of clients at www.myImmigrationAttorney.com. He is the architect of the first web site to explain to people how America functions, which is used by both newcomers and Americans alike, you can find it at www.USAexplained.com.

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