Tourist Visa Denied to Son --- cannot understand it

[ExpatChiangMai 0]

My wife and I are Americans living in Northern Thailand, and we go back to the US on visits. We want to take my son in law, who could help my wife because she now has a physical handicap and needs assistance, plus he would like to see America. My son in law owns his own business generating an income, has a wife and lives with her, has money in the bank --- he is also an adult (31 yrs), responsible and has no reason to stay in the US. Almost 4 years ago, we applied for him to get a green card in the US as an adult son of US citizens (my step son, my wife's real son). That is still in process, and we have been told it will take about 8 years (4-5 more years) before he will get that green card.

So my son goes to the Chiang Mai, Thailand, consulate to apply for a B-2 Tourist visa --- has all his documents and everything is A.O.K. The consulate interviewer said he would qualify on the basis of everything, EXCEPT he says the law says you cannot get a tourist visa if you have a residence visa (green card) pending. He quotes and puts in writing that my son is denied because of section 214(b) in the Immigration code.

I have tried to find that law, and I cannot find it anywhere. That section 214(b) says nothing about unable to qualify because he has a green card application pending. I check the regulations about green cards, and it says nothing about not being able to get a tourist visa during the process. I have scanned as much of the US laws regarding visas I can find and have found nothing. To me, it seems like this consulate officer just made it up.

My personal opinion is that the consulate has an agenda of denial. Their goal is to get as many applicants as possible, paying $160, give them a matter of minutes (like two or three), and then deny them. It must be a good maker for the US government.

For an American to visit Thailand, they don't need a visa at all. Just pop into the airport of other immigration point with a US passport and 30 days is automatically given.

I wrote to the consulate myself with this question, but they don't even respond. They promise to get back to me in 48 hours but that is like a joke.

So my question to this forum is: does anyone know about this regulation? Where is it in US laws and codes? And any suggestions of how I can get the visa granters to be more reasonable and fair?

[DaveE 178]

INA Section 214(b), also found in the United States Code at 8 USC 1184(b), states:

"...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 nonimmigrant status under section 101(a)(15)."

Since your son in law is pending a "green card", he has shown "immigration intent", therefore he is presumed to be an immigrant; and not qualified for a tourist visa. Most consulates do the same thing, expecially in third world countries. It's not Thailand nor the $160. Same thing happens every day in the Philippines and similar countries. CO's have a lot of discretion on this, and they normally lean on the side of denial.

If he was not pending a green card, he probably would have no problem getting the visa.

[Darnell 8,479]

yup, the CO used the regs, it was an easy denial.

Please understand that the CO , by law, starts with an assumption of immigrant intent.

It's on the tourist visa applicant to prove up otherwise.

For an applicant to have a petition already in the pipe, is a great example of 'immigrant intent' back to the CO.

I know of no way round this..

[Boiler 45,997]

You can certainly have a GC application and still vist, if you can get a Visa. Which seems unlikely.

[Harsh_77 718]

Your post is little confusing talking about your son-in-law and then talking about your step son.

If you have filed perm resident application means you have immigrant intention.... to the contrary while applying the B1/2 tourist visa you are saying you have no immigrant intention.

Both cannot be true and based on the pneding application his tourist visa was rejected, which sounds right.

[Harpa Timsah 13,258]

A son-in-law would be your daughter's husband. A step-son is your wife's kid. Who is he? If he is your wife's kid, why is he not a USC himself? Is she a naturalized US Citizen?

[Karee 4,191]

What Darnell said. He could come here on a B visa and try to adjust status. Having that petition pending is a huge red flag.

[ExpatChiangMai 0]

Sorry for the confusion of son-in-law v. step son. I may have these terms mixed up, but that was not the point of my posting. For clarification, this person is the son of my wife, born prior to my marriage to her. I guess step-son is accurate, not son in law. He has been adult during all the time I have been married, and we have a pending residence visa for him based on an adult child of an American citizen. We filed papers and paid fees in the mix-600's to process this application now almost 4 years ago. We are told it is "in process" and will be at least another 4 years before he is up for this. This is a long and expensive process that requires a lot of patience on our part, and we have done that. We don't know if even his petition will be successful, and will not get an answer to that question for several years more.

I appreciate DaveE giving me the exact statute that pertains here --- I could get no response from the consulate and they have just ignored my question when I asked for the specific law the interviewing officer claimed pertained to this. While I read the words, it does not seem fair or justified. My son must wait about 8 or 9 years for the government to process his application for residency. During that time --- and some would consider that a long time --- he is not allowed to have any short visits to the US. He would definitely not violate the terms of a tourist visa, as he would not want to jeopardize his application process for residency. He is, in fact, more likely to return to his homeland than most. In the 9 years or so waiting for the process, he is unable to visit family in the US that cannot leave to visit Thailand (because they are too young or too old). During this time period, some family members are dying off.

What really gets to me is that the officer makes a decision and there is never any appeal allowed. In our case, I think if I were able to explain it to an impartial judge, I would get a more reasonable result. Even in the criminal streets in the US, the cop on the beat is not allowed to be cop--judge-jury for anything he sees, and then only respond with vague answers, like it is "against the law". There is a level of fairness and courtesy that should be expected from the bureaucrats that are representing us (meaning representing my wife and I, taxpaying citizens). I don't see it here.

And all this in the context that any American with a passport can simply pop into Thailand and be granted a 30 days stay with no cost for processing. There should be reciprocal fairness in the process.

[Boiler 45,997]

It is his application. Not yours.

[DaveE 178]

Sorry for the confusion of son-in-law v. step son. I may have these terms mixed up, but that was not the point of my posting. For clarification, this person is the son of my wife, born prior to my marriage to her. I guess step-son is accurate, not son in law. He has been adult during all the time I have been married, and we have a pending residence visa for him based on an adult child of an American citizen. We filed papers and paid fees in the mix-600's to process this application now almost 4 years ago. We are told it is "in process" and will be at least another 4 years before he is up for this. This is a long and expensive process that requires a lot of patience on our part, and we have done that. We don't know if even his petition will be successful, and will not get an answer to that question for several years more.

I appreciate DaveE giving me the exact statute that pertains here --- I could get no response from the consulate and they have just ignored my question when I asked for the specific law the interviewing officer claimed pertained to this. While I read the words, it does not seem fair or justified. My son must wait about 8 or 9 years for the government to process his application for residency. During that time --- and some would consider that a long time --- he is not allowed to have any short visits to the US. He would definitely not violate the terms of a tourist visa, as he would not want to jeopardize his application process for residency. He is, in fact, more likely to return to his homeland than most. In the 9 years or so waiting for the process, he is unable to visit family in the US that cannot leave to visit Thailand (because they are too young or too old). During this time period, some family members are dying off.

What really gets to me is that the officer makes a decision and there is never any appeal allowed. In our case, I think if I were able to explain it to an impartial judge, I would get a more reasonable result. Even in the criminal streets in the US, the cop on the beat is not allowed to be cop--judge-jury for anything he sees, and then only respond with vague answers, like it is "against the law". There is a level of fairness and courtesy that should be expected from the bureaucrats that are representing us (meaning representing my wife and I, taxpaying citizens). I don't see it here.

And all this in the context that any American with a passport can simply pop into Thailand and be granted a 30 days stay with no cost for processing. There should be reciprocal fairness in the process.

Hey, I feel your pain. I have a step daughter that has been refused so many times that the CO actually told her to quit trying to get a tourist visa. They approved her F2B visa to come live here permanently, but because that demonstrates immigrant intent, they will not even entertain her a tourist visa. This basically means a 12 year wait before she can even visit us. They told my Senator very politely to shut up when he tried to intervene. The basically told him that "they would apply the law", and disapproved her for the third or fourth time.

Google "consular nonreviewability", and you will be shocked. Basically the law says that no court can override the decision of the CO. There are only two exceptions; 1. The CO made a decision he didn't have the authority to make. (The CO obviously has visa granting or denial authority) 2. The CO made a decison without a facially legitimate or bonafide reason.(The CO is instructed by the State Department to determine immigrant intent).

A brief quote from the Ninth Circuit:

[1] Federal courts are generally without power to review

the actions of consular officials. Li Hing of Hong Kong, Inc.

v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). However, at least

two exceptions to this rule exist. First, a court has jurisdiction

to review a consular officials actions when [the] suit challenges

the authority of the consul to take or fail to take an

action as opposed to a decision within the consuls discretion.

Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997).

Second, the court has jurisdiction to review a consular officials

actions when the government denies a visa without a

facially legitimate and bona fide reason. Bustamante v.

Mukasey, 531 F.3d 1059, 1060 (9th Cir. 2008).

Edited September 13, 2012 by DaveE

[afoyoswa 178]

And all this in the context that any American with a passport can simply pop into Thailand and be granted a 30 days stay with no cost for processing. There should be reciprocal fairness in the process.

When you are talking about the U.S. and almost any developing country, there is no such thing. I can visit Uganda anytime I want with no advance planning: I walk out of the plane, pay $50, and go on my merry way. My fiance has virtually no chance of obtaining a tourist visa to visit the U.S. That's just the way it is.

[aaron2020 11,651]

Sorry for the confusion of son-in-law v. step son. I may have these terms mixed up, but that was not the point of my posting. For clarification, this person is the son of my wife, born prior to my marriage to her. I guess step-son is accurate, not son in law. He has been adult during all the time I have been married, and we have a pending residence visa for him based on an adult child of an American citizen. We filed papers and paid fees in the mix-600's to process this application now almost 4 years ago. We are told it is "in process" and will be at least another 4 years before he is up for this. This is a long and expensive process that requires a lot of patience on our part, and we have done that. We don't know if even his petition will be successful, and will not get an answer to that question for several years more.

I appreciate DaveE giving me the exact statute that pertains here --- I could get no response from the consulate and they have just ignored my question when I asked for the specific law the interviewing officer claimed pertained to this. While I read the words, it does not seem fair or justified. My son must wait about 8 or 9 years for the government to process his application for residency. During that time --- and some would consider that a long time --- he is not allowed to have any short visits to the US. He would definitely not violate the terms of a tourist visa, as he would not want to jeopardize his application process for residency. He is, in fact, more likely to return to his homeland than most. In the 9 years or so waiting for the process, he is unable to visit family in the US that cannot leave to visit Thailand (because they are too young or too old). During this time period, some family members are dying off.

What really gets to me is that the officer makes a decision and there is never any appeal allowed. In our case, I think if I were able to explain it to an impartial judge, I would get a more reasonable result. Even in the criminal streets in the US, the cop on the beat is not allowed to be cop--judge-jury for anything he sees, and then only respond with vague answers, like it is "against the law". There is a level of fairness and courtesy that should be expected from the bureaucrats that are representing us (meaning representing my wife and I, taxpaying citizens). I don't see it here.

And all this in the context that any American with a passport can simply pop into Thailand and be granted a 30 days stay with no cost for processing. There should be reciprocal fairness in the process.

Your logic is flawed.

A US visitor visa is a privilege and not a right for a foreign national.

The Consular Officer unlike a cop does have the authority to be judge and jury. The law allows the CO to have final authority over visitor visas and that power cannot be reviewed on appeal. A cop doesn't have ultimate authority.

The CO did give you the law on why your stepson was denied a visa. People with immigration experience here have given you the reason why.

You think that Thailand and the US should have reciprocal policy on visitor visas. That ignores the reality of illegal immigration. What percentage of US citizens who visit Thailand would illegally immigrate there vs what percentage of Thai would illegally immigrate to the US if all Thais can have visitor visas?

Using your logic, should all Mexicans be able to cross into the US without visas because US citizens can visit Mexico without visas. There are already millions of illegal immigrants from Mexico, how many more would we have using your recipecol visa idea?

You can't have recipecol visitor visas between first world countries and third world countries. First world countries would be have more illegal immigrants from third world countries than they currently have.

You have to accept the basic principal that a visitor visa is a courtesy extended to a foreign national and not a right. The US gets the final say. It may not seem fair to you that your stepson didn't get his visa, but the CO didn't do anything wrong.

[Harsh_77 718]

Your logic is flawed.

A US visitor visa is a privilege and not a right for a foreign national.

The Consular Officer unlike a cop does have the authority to be judge and jury. The law allows the CO to have final authority over visitor visas and that power cannot be reviewed on appeal. A cop doesn't have ultimate authority.

The CO did give you the law on why your stepson was denied a visa. People with immigration experience here have given you the reason why.

You think that Thailand and the US should have reciprocal policy on visitor visas. That ignores the reality of illegal immigration. What percentage of US citizens who visit Thailand would illegally immigrate there vs what percentage of Thai would illegally immigrate to the US if all Thais can have visitor visas?

Using your logic, should all Mexicans be able to cross into the US without visas because US citizens can visit Mexico without visas. There are already millions of illegal immigrants from Mexico, how many more would we have using your recipecol visa idea?

You can't have recipecol visitor visas between first world countries and third world countries. First world countries would be have more illegal immigrants from third world countries than they currently have.

You have to accept the basic principal that a visitor visa is a courtesy extended to a foreign national and not a right. The US gets the final say. It may not seem fair to you that your stepson didn't get his visa, but the CO didn't do anything wrong.

OP I cannot agree with your logic...you are looking at immigration only from your own perspective which and how it can be working for you and your family.

For granting visa to foregin national all countries have their own reason and logic to whom they give the visa upon landing, does Thais give 30 day visa to resident of all the countries? I don't think so it would be only for citizens of US, UK, AUS etc.

Also there is no way you can gurantee your son would return back if he was granted tourist visa.

[GandK 168]

You said he has no reason to stay in the US. Well, having an immigrant visa pending is a huge red flag and that is a pretty darn good reason for the officer to deny his visa since he intends to immigrate to the US in the future.

[#100 1]

I think everything depends of individual case, because My mother filled petition /FB1/for me oct 2005 and 2008 CO approved me 10 years B1/B2 visa. When CO approved my 10 years visa I had expired 5 years visa approved 2003. Also my daughter was approved 5 years B1/B2 visa in 2010, also my girlfriend was approved 10 years B1/B2 visa in 2009. We have visited US together 2010 and 2011.