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My Thai Girlfriend Was Denied a US Tourist Visa. What Do We Do Now?

Transcript of the above video:

As the title of this video suggests, this is a video that is going to be discussing US Tourist Visa Denials specifically for the girlfriends of American citizens and as my producer who is helping me put these videos together commented right before we began shooting, he said "Wow that is a really specific title!" And I said, well there are a significant number of people who call our offices rather frequently and basically have this exact question: "We sought a tourist visa, we were denied, what we do?" Well the short answer is “it depends”.

In many, many cases it is my opinion that most people who are seeking a US tourist visa for the significant other of an American citizen, are going to be denied. Now, strictly speaking there are some finer lines with respect to this issue, and the issue of what's called section 214 (b) of the Immigration and Nationality Act. There is another video on this channel which specifically gets into the details of what's called section 214 (b) but just a quick overview.  Basically, pursuant to the provisions of section 214 (b), the Consular Officer adjudicating a US tourist visa case must go ahead and make an analysis of "strong ties, weak ties"; strong ties to the home country of the applicant or a third country, a third party country outside the United States, and weak ties to the United States. In most cases involving single Thai women, especially single Thai women who have a significant other who's an American citizen, the "strong ties, weak ties" analysis is going to go against the applicant. It's going to go against the girlfriend, or boyfriend for that matter, of an American citizen. But the thing to take away from this video is first of all, one thing I should really note with this video is, there are those that have contacted me in the past with respect to a US tourist visa and they have said "well what if I just don't, we just don't tell them that she has got an American boyfriend?" I find that to be very unwise and imprudent. I don't think it's wise to ever, it is never wise to lie to the immigration apparatus and it's not wise to lie to any of the authorities at the Immigration Offices either in the United States or the Consular Officers abroad at the US Embassy or Consulate abroad. So the thing to take away from this video is, first of all don't lie.   If you have an American boyfriend, I would say disclose it and some people say, well it doesn't actually ask "Do you have an American boyfriend?" although on the Department of State forms, the DS-160, they actually do ask where you are going to be staying and lying about that can be a problem. There's all kinds of problems associated with lying on an Immigration Form or lying to an Immigration Officer and the other thing with respect to lying is it could lead to a finding of inadmissibility to the United States on the ground of Fraud and Misrepresentation’ so lying in one of these adjudications is really not a good idea.

Now the next thing is, you know, one can apply and as long as they are being upfront about their intentions and what they're going to do in the United States, one can go ahead and apply. Again 214 (b) is a really, really, really high threshold for most folks in these situations and frankly they take the opinion that, look there is a pretty good chance if you have got an American boyfriend you may use your tourist visa, go over to the United States, marry him and adjust status to lawful permanent residence in the United States. The reason they take this position and make this assumption is because it has happened quite frequently in the past; in fact it was not an infrequent occurrence at all in the past. So the only reason I bring this up is because, that is one of the reasons why the denial is occurring. So now what do you do? You have gotten a denial. Well in most cases, the denial is going to be very, very difficult to overcome because quite frankly, the circumstances in the case don't warrant a change in decision. There hasn't been a material change in circumstances with respect to the tourist visa being denied and simply applying again and presenting different evidence probably isn't going to get you there. A lot of people ask me "can the decision be appealed?" Well strictly speaking "NO". Pursuant to what is called the Doctrine of Consular Non-reviewability, or Consular Absolutism, the Consular Officers have pretty much unfettered discretion, at least from a fact-finding standpoint. If you are looking at this, as the Consular Officer is the person on the ground who is the primary finder of fact, the legal and the immigration apparatuses both look at their fact-finding function in such a way that they basically take the position that they are in the best position to make the decision. They are literally the "boots on the ground" person who has been entrusted with making that decision and we are going to go ahead and trust that they made the right one and we are not going to review and have an appellate system with respect to Consular decisions. This is actually fairly old case law. It dates back to the early 19th century and I believe the major case, I remember reading it one time, involved an American, actually it wasn't even an American, it was a foreign national suing a Consular Officer like in the Supreme Court and the Supreme Court basically came up with this doctrine and said look we're not going to review every little detail of every little case or really review much at all what Consular Officers are doing in their function as the adjudicator of visa applications; we are simply not going to go down that road. So "appealing the decision" isn't really an option. It may be possible to request a reconsideration and if there is other compelling documentation and evidence that can be submitted, Consular Officers are reasonable people. If there is a valid reason for allowing an individual to go to the United States they are not going to just summarily reject them without cause if there really is a compelling reason so yes it may be possible to get them to reconsider.

The next set of analysis really comes down to the circumstances of the given couple and I want to be very, very clear. No one should ever tailor their life choices in order to get immigration benefits. Okay? So getting into a fiancée relationship or marital relationship simply to get an immigration benefit, will probably be deemed to be a sham marriage issue and could be deemed to be Fraud and Misrepresentation or Immigration Fraud and falls into the category of "marriages of convenience".  So I want to be very, very clear up front or right now in this video. One should not simply start looking at seeking family-based visas based on the denial of a girlfriend, or a boyfriend, for a tourist visa simply because it's the "next" option, it is not. It is circumstantially dependent on the given facts of a couple's case. But if there really is a genuine intention to marry a foreign national in the United States, in this case we are specifically talking about let's say a Thai girlfriend, then yes a K-1 fiancée visa may be the viable option and that would be the type of case where first of all section 214 (b) doesn't apply and secondly, yes it's a longer process compared to the tourist visa application, but once the process is complete, that individual can at least upon adjustment of status in the United States, can remain in the United States status in lawful permanent resident status. In theory, down the road they could naturalize to US citizenship. So if there is a genuine fiancée relationship or if the couple later gets married, legally married, then there is a marriage visa option down the road too. So the thing to take away from this video is first of all,  unfortunately if you are watching this you have probably been denied or your girlfriend or boyfriend's been denied for a tourist visa from Thailand; it is not exactly and uncommon thing. There may be other options depending on circumstances there may not and unfortunately 214 (b) is really a tough threshold to overcome. If you genuinely engage in a more serious relationship, then there maybe immigration visas, there may be immigration options available. There other videos on this channel specifically about the K-1 fiancée visa as well as the CR -1 and IR-1 spouse visas as well as the K-3 spouse visa, so there may be other options but again the thing to take away from this video as well, immigration benefits should not dictate one's life choices and sham marriages and fraud and misrepresentation are serious findings of inadmissibility so one should only be seeking a fiancée or marriage visa if their intentions are commiserate with those visa benefits.