How can my brother visit the U.S. after being denied a visa pursuant to INA § 214(b)?

Question: Dear SRW Border Lawyers,

I am a United States citizen. I was born in Yemen but moved to the United States after I married my husband. I have been trying to bring my brother to the USA for several years now to visit my family—I have four children who have never met their uncle. I have not seen him in a very long time and I would love for him to come visit me and my family. My brother is 22-years-old and lives in Yemen. Our parents passed away a long time ago, so he has no family where he lives. My brother lives with different friends, is unemployed, and he receives support from close friends and neighbors. He graduated from high school in Yemen, but would like to explore attending university in the United States.

In 2008, he applied for a B1/B2 visitor visa, but he was denied. The letter that accompanied his denial indicated that he was found ineligible for a nonimmigrant visa under INA § 214(b) of the Immigration and Nationality Act.

How can I bring my brother to visit my family and me in the United States?

Answer: Thank you for your question. Based on the information you have provided in your question, it appears that your brother was denied a nonimmigrant B1/B2 visitor visa under INA § 214(b) of the Immigration and Nationality Act. Section 214(b) reads, in part, as follows:

Every alien…[exceptions omitted]…shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) [8 U.S.C.A. § 1101(a)(15)].

Therefore, pursuant to INA § 214(b), all applicants (with limited exceptions) for a nonimmigrant visa are presumed to be entering the U.S. to stay permanently. In addition, INA § 291 places the burden of proof on the applicant at the time of applying for a visa or admission to prove that he or she does not have the intent to stay in the U.S.

In order to be approved for a visa, applicants must prove that they are eligible for the type of visa they are applying for and that they will depart the U.S. at the end of their authorized stay. In doing so, applicants must demonstrate strong social, economic, and/or familial ties outside the United States.

Since your brother applied for his visa at a consulate or embassy in Yemen, it is most likely the case that he was unable to overcome the presumption of immigrant intent during his visa interview with a consular officer. Your question provides information that seems to highlight your brother’s lack of ties to Yemen: no family, no home, no employment, and that he is not enrolled in university. If your brother ever hopes to visit the U.S., he must begin to develop strong ties. The most common way to develop ties include: employment, family, education, and property.

I would encourage you to contact our office to discuss your brother’s case in further detail, and to determine if other options may be available to him other than a B1/B2 visa. For more information about INA § 214(b), visit the following website: http://travel.state.gov/visa/laws/telegrams/telegrams_2173.html.