DOS Instructs Consulates to Issue Full-Validity NIVs
Posted Apr 13, 2001
As many readers of the MurthyBulletin are aware, certain nonimmigrant visa (NIV) categories require proof that the applicant has strong ties to the home country, and intends to return there after a temporary stay in the U.S. This requirement, under a section of the Immigration and Nationality Act known as 214(b), applies to a variety of categories, including B1 business visitors, B2 tourists, F1 and M1 students and J1 exchange scholars. (Notable exceptions, which would not be subject to 214(b), are the H1B and the L1.) Section 214 (b) presumes that an applicant is an intending immigrant, unless the person can overcome the automatic presumption of law and establish strong family and/or business ties to the home country.
Definitely, the above requirement of nonimmigrant intent under 214(b) is the most common ground for denial of a visa in any of the categories that are subject to that standard. However, on occasion a Consular Officer may exercise discretion, by perhaps issuing a visa of shorter duration than usual or issuing a single-entry visa even though the person applied for multiple entry, in effect providing a visa on a trial basis. Nearly always, this type of approval would be with respect to a visitor's visa, either B1 or B2.
On March 15, 2001 the U.S. Secretary of State, Colin Powell, issued a telegram to consular officers discouraging the above practice for a variety of reasons. Issuing limited validity visas to some applicants and full validity visas to others may open the U.S. Department of State (DOS) to charges of discrimination if it turns out that people from some countries are less likely to obtain full-validity visas than people from other countries. Also, if a person has to reapply frequently for the visa, there is additional paperwork to be processed, adding to the Consulate's workload. Furthermore, having a visa of a short duration would in no way guarantee a person's return from the U.S. Finally, as explained below, the available validity periods are set by reciprocity, so limiting validity could lead to discrimination by the consulate's host country (i.e. the country where the particular U.S. consulate is located) against U.S. travelers wishing to travel to the host country. Therefore, limiting visa validity or number of entries should not be a routine practice, but rather should be done only in "exceptional circumstances."
Accordingly, the telegram instructs Consular Officers to either approve the visa for the full validity available, or to deny it. The maximum validity period and number of entries allowed are set by reciprocity, meaning that these figures are determined based upon the duration of visa that the particular country would give to a U.S. applicant. Reciprocity schedules for each country are available online through the DOS's website. The schedule lists the maximum validity period for each visa type, whether multiple-entry visas are possible for that type of visa, and the fee, if any. (The visa fee is also set by reciprocity. All visa applicants pay a basic $45 fee, but for many countries there is an additional fee based on reciprocity. For example, for Indian nationals that fee is $75. In contrast, there is no reciprocity fee for Japanese applicants.)
If the practice of limiting visa validity occurs routinely, Secretary Powell explained in the telegram, the host country could possibly raise an objection that the U.S. is not treating its citizens similarly to how that country treats U.S. applicants. That country could then impose restrictions on the visas it issues to U.S. travelers. © The Law Office of Sheela Murthy, P.C.
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