Getting to America - denied because of 214(b) requirement

By: Debbie McGoldrick | Published Friday, November 4, 2011, 1:15 PM | Updated Friday, November 4, 2011, 1:15 PM

U.S. immigration official

“I AM an American citizen and my sister’s 22-year-old daughter wants to come to the U.S.   She does not have a college degree and has worked odd jobs in jobless Ireland for the past four years. Now she would like to come out here. She would like to try and get a job legally, but when she came last month she was refused entry by the U.S. immigration officer because she didn’t meet something called a 214(b) requirement?  The officer said she was a risk to stay here permanently.  All she wants to do is come here and seek a job legally, but she’s been denied that chance. I am furious and very frustrated. I pay taxes and obey the law 100%, so why shouldn’t I be able to take care of my niece?”

You are likely aware that it will be difficult for your niece to come here legally – difficult, but not impossible. Her lack of higher education will not help, nor will a resume of odd jobs.

This is what likely attracted the attention of the U.S. border patrol officer she encountered when trying to enter the country.  The 214(b) provision of immigration law you cite is as follows:

"Every alien … 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 non immigrant status.”

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In other words, the U.S. officer has the right to assume that visitors to the U.S. may intend to stay in the country beyond the terms of the visa.  According to Section 291 of the Immigration and Nationality Act, the burden of proof to otherwise rests with the applicant:

“Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document . . . if such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the attorney general that he is not inadmissible under any provision of this act.”

A 214(b) refusal is not a permanent bar to entering the U.S. Your niece has the right to re-apply for entry again, but she’ll need to be prepared with evidence showing that her stay in the U.S. will be 90 days or less, that she has ties to Ireland that necessitate her timely return, and that she can financially support herself while she’s here.

While you may be a law-abiding and tax-paying U.S. citizen, immigration law doesn’t take this into account when evaluating a foreign resident’s right to enter the country.  You can definitely provide a letter indicating your financial support of her while she’s here, but other than that it will be up to her to prove eligibility.

Has she applied for a visa lottery green card? Though chances of success are very slim she should apply anyway at www.dvlottery.state.gov. The entry period closes on Saturday at noon so she should act fast.

When she arrives here in the meantime she’ll be able to scope out potential job opportunities, but it’s very difficult to secure both jobs and visas these days.  She should check in with the Irish immigrant advice centers throughout the U.S. when she gets here. To find the nearest one to where you live visit www.ciic-usa.org.