I recently had a conversation with someone who lives outside the United States and is having trouble gaining a B1/B2 visa. I’ve heard almost identical versions of what this person told me hundreds of times before from others – and I’ve personally seen identical versions of this situation play out literally thousands of times when I was a Consular Officer at U.S. embassies and consulates around the world.
Here’s how it unfolds. A first-time visa applicant is denied a visa under INA § 214(b). Thinking that this denial was clearly an error by the consular officer, the applicant interviews a second time and is issued a second 214(b) denial with even fewer questions and in less time than the first interview. The applicant then interviews a third time – maybe waiting a year or two, or maybe trying a different consulate – and is denied a third time, still faster than before, and maybe now with a hint of disdain from the third consular officer.
This applicant is swirling head-first down what I have named the Prior Refusal Spiral, or if I am to be perfectly frank, what I have alternatively named the Prior Refusal Death Spiral. Whatever you call it, it’s a vicious vortex with a downward pull that is stronger than gravity itself.
Pulling oneself out of the Prior Refusal Spiral is difficult but possible. In a following post titled “The Tourniquet Strategy: Intentionally Seeking a 221(g) Refusal to Stop the Bleeding,” I describe a strategy that I’ve developed for clients to do just this – to pull themselves out of the Prior Refusal Spiral. And to briefly preview the strategy here: this applicant-initiated strategy is literally the mirror image of what I did as a Consular Officer, on my own accord, for visa applicants in the Prior Refusal Spiral, as a discharge of my deeply held belief that something akin to a de novo review needs to occur in these cases.
What Is Actually Happening Inside the Spiral
In the Prior Refusal Spiral, here is what is happening with this applicant and others like him or her. Saving the “why” of a 214(b) denial for a future post, suffice it to say that “rightly” or “wrongly,” the first interview resulted in a 214(b) denial. All visa interview notes are typed and saved (contemporaneous with the visa interview) in the Consular Consolidated Database (CCD). If the first interview occurred before 2010 (or even a little later), there is more than an excellent chance that the CCD notes of the denial say almost nothing. Literally. And this is because it wasn’t until after 2010 – and even subsequent years – that consular officers routinely made fulsome case notes for 214(b) denials.
Whether “good” case notes of the first interview exist or not, for the subsequent interview, consular officers are taught that there must be “changed circumstances” to “overcome” the prior refusal and issue the visa. It is precisely for this reason that clients and applicants report being asked, “What has changed since your last interview?” This concept of “changed circumstances” is so deeply embedded in the collective consular officer conscience that clients and applicants routinely – over and over again – all report being asked, almost verbatim, “What has changed since your last interview?”
In nearly any event, but particularly if your second interview is some number of years after the first, how do you even begin to answer this question – which, by the way, is generally asked with absolutely no context? There is almost no good way to answer this question absent context and in the time allotted for the interview. And, as a consequence, more often than not, the second interview results in a swift, second 214(b) denial. The pattern continues exactly like this during the third, fourth, and subsequent interviews. The applicant is in the Prior Refusal Spiral and can’t climb out.
Why Each Refusal Makes the Next Approval Harder
The criticality of gaining visa approval on a first-time application cannot be overstated. Every successive application after a prior refusal renders the applicant more difficult to approve under Section 214(b). There are two primary reasons for this.
First, whereas a first-time applicant is a tabula rasa, a prior refusal applicant has a recorded assessment on file in perpetuity. From a consular officer’s perspective, it is one thing to make the wrong assessment about a blank-slate applicant with whom there is no recorded past interaction. It is a very different thing to make the wrong – and contrary – assessment of a prior refusal applicant who has already received a refusal determination from a prior consular officer. For this reason, there is a gravitational pull toward refusal of prior refusal applicants. Further, the likelihood of a prior refusal applicant gaining approval on re-application continues to decline with each successive re-application, producing a compounding Prior Refusal Spiral.
Second, consular operations at posts – with multiple and even dozens of consular officers – have an institutional interest in discouraging applicants from engaging in “consular officer forum shopping.” If the applicant pool believes that gaining a visa is a function of being interviewed by the “right” consular officer, public confidence in visa adjudication as being guided by law and consistent standards is eroded. Consular officers therefore observe an unwritten guiding principle that overturning another consular officer’s prior refusal should be undertaken with great care, if at all. Doing so normally requires new facts that specifically and unquestionably refute the prior facts or assessment that formed the basis of the prior refusal – and thus, this is why “What has changed since your last interview?” is asked.
The Stakes Are Asymmetric
The stakes, then, of a first-time application are asymmetric – a denial carries consequences that compound over every subsequent application. Clients seeking a visa for the first time should invest maximally in preparation, because the cost of under-preparation is not simply one denied application – it is a potentially permanent degradation of their visa prospects.
And for those clients and applicants who do find themselves in the Prior Refusal Spiral, there is still hope, as discussed in my next post, which outlines The Tourniquet Strategy that I developed as an immigration law attorney but which has its genesis in the work I did as a Consular Officer.
If you are preparing for a first-time visa application – or are already caught in the Prior Refusal Spiral – we invite you to consult with us before your next interview, not after your next denial.
