9 FAM 403.12
(U) NIV Adjudication review
(CT:VISA-831; 06-03-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 403.12-1 (U) NIV
Adjudication Review Process
(CT:VISA-831; 06-03-2019)
a. (U) Overview:
Consular managers and other reviewing officers must review nonimmigrant
visa (NIV) issuances and refusals in accordance with the Secretary of State's
guidance to protect national security, to ensure compliance with laws and
procedures, to protect against fraud, and to help maintain the highest
professional standards of adjudication. To meet these goals, reviewing
officers must utilize the NIV Adjudication Review Form in the CCD to review
adjudications in a timely manner.
b. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
c. (U) NIV
Adjudication Review Form: At a minimum, reviewing
officers must use this tool to conduct adjudication reviews on the FAM
Standard Set plus any additional cases required
to be reviewed for new officers pursuant to 9 FAM 403.12-3
paragraph (b) and 9 FAM 403.12-4 paragraph (b). A
reviewing officer must review each case in the
FAM Standard Set and confirm or disagree with the adjudication. See 9 FAM 307.4,
Supervisory Duties, for information regarding supervisory review and Visa Lookout Accountability (VLA) violations.
The NIV Adjudication Review Form permits reviewing officers to review all
adjudications or tailor reviews by officer, visa class, and other factors.
d. Unavailable
e. Unavailable
9 FAM 403.12-2 (U) WHO CONDUCTS Adjudication Review?
(CT:VISA-831; 06-03-2019)
a. (U) The Chain of Command Rule: The reviewing officer must be in the adjudicating
officers supervisory chain of command. In general, except as described in
paragraph (c) below, the reviewing officer should be the adjudicating officers direct supervisor,
regardless of whether the reviewing officer has a consular commission and
title.
b. (U) If the chain of
command rule of the previous paragraph results in a reviewing officer who does
not have a consular commission and title (some Deputy Chiefs of Mission, for
example, may not be authorized to adjudicate visas), that officer should nevertheless review adjudications.
c. (U) In multi-post
missions, the Country Consular Coordinator (CCC) often the Minister Counselor
of Consular Affairs (MCCA) should review each constituent posts senior
consular officers adjudications, in lieu of the Principal Officer, even if the
CCC is not the senior consular officers direct supervisor. A multi-post
mission may request an exception to this rule if the CCC is not in the best
position to review the adjudications of a constituent posts senior consular
officer. Such a request should be made to CA/VO/F (consult Who's Who on
CAWeb to identify the holder of the NIV adjudication review portfolio) and
should include a clear rationale for the exception.
d. (U) A Regional Consular
Officer (RCO), at those posts covered by the RCO program,
is not in the adjudicating officers chain
of command and does not have supervisory authority over consular officers at
post. Therefore, RCOs may not perform the adjudication review function and do
not have that authority in the CCD. However, the RCO does provide a
consultative role to both the adjudicating officer
and the supervisor in adjudication review. In preparation for their visits,
RCOs must review all issuances over Category I hits as well as a selection of issuances and
refusals by each officer at post. Potential VLA violations,
as well as other cases of concern, must be raised to post and reported,
preferably by post, to the Visa Office as required. The RCO must meet with
adjudicating officers and include the
quality of adjudication as a regular topic of discussion.
9 FAM 403.12-3 (U) Supervisory
Review of NIV Refusals
9 FAM 403.12-3(A) (U) NIV
Refusal Review Procedures
(CT:VISA-831; 06-03-2019)
a. (U) Reviewing officers must
review as many nonimmigrant visa (NIV) refusals as is practical, but not fewer
than 10 percent of refusals for each adjudicating day unless otherwise capped by the FAM Standard Set.
Such a review is a significant management and instructional tool and is useful
in maintaining the highest professional standards of adjudication. It helps
ensure uniform and correct application of the law and regulations.
b. (U) Reviewing officers
should pay particular attention to refusals of less experienced officers. The
less visa adjudication experience an officer has, the greater the percentage of
refusals the reviewing officer should review. During the first 10 days of a
new officer's adjudications, the reviewing officer must review 100 percent of
that officer's adjudications. As an officer gains experience and competence
over time, the percentage of refusals reviewed may decline as the reviewing officer
deems appropriate.
c. (U) If a reviewing officer with a consular commission and
title does not concur with the refusal, he or she may assume responsibility and
re-adjudicate the case. The reviewing officer must discuss the case fully with
the original adjudicating officer before taking any action. The reviewing
officer must not reverse a 214(b) refusal without re-interviewing the applicant
in person or by phone, as information gained during the interview may be an
essential component of any 214(b) decision. If the disagreement involves
a matter of law, the reviewing officer may assume personal responsibility for
the case and reverse the decision without speaking with the applicant, after
discussing with the original adjudicating officer. The reviewing officer
should enter a note in the NIV Adjudication Review Form in the CCD that
explains the reason for overturning the refusal.
d. (U) A reviewing officer without a consular commission and
title may not issue or refuse a visa. Therefore, if such a reviewing officer
does not concur with the refusal, he or she must:
(1) (U) Discuss the basis for
the original refusal with the adjudicating officer in a good faith attempt to
arrive at a mutually acceptable final adjudication of the application.
(2) (U) If such a discussion
cannot resolve the issue and post is part of the RCO program, the RCO should be
consulted for his or her insight with a view to coming to a mutually agreed-upon
adjudication.
(3) (U) If the difference of
opinion turns on a legal or procedural issue that cannot be resolved by
consulting Departmental guidance at post (the INA, FAM, Consular Management
Handbook, cable guidance, etc.), post should seek Visa Office guidance. Legal
questions should be referred to the Advisory Opinions Division (CA/VO/L/A) and
procedural questions to the Office of Field Operations (CA/VO/F).
(4) (U) If, despite these
efforts, no mutually agreed-upon adjudication can be achieved, the refusal
stands. If this occurs, the reviewing officer should add a note to document
the discrepancy in the case notes and in the NIV Adjudication Review Form in the CCD.
9 FAM 403.12-4 (U) Supervisory
Review of Visa Issuances
(CT:VISA-831; 06-03-2019)
a. (U) Reviewing officers must
review as many NIV issuances as is practicable, but not fewer than 10 percent
of issuances for each adjudicating day unless
otherwise capped by the FAM Standard Set. Systematic, regular review of
approved NIV applications is a significant management and instructional tool to
maintain the highest professional standards of adjudication. It also ensures
uniform and correct application of applicable law and regulations. This review
should be done with a view to enhancing U.S. border security and ensuring
consistent adjudication standards (see 9 FAM 601.4-2).
The reviewing officer must review the case
and either confirm or disagree with the issuance and, in the case of
disagreement with the issuance, explain the decision clearly in the review form and add a case note. (See 9 FAM 307.4,
Supervisory Duties, for information regarding supervisory review and VLA
violations.)
b. (U) Reviewing officers
should pay particular attention to issuances of inexperienced officers. During
the first 10 days of a new officer's adjudications, the reviewing officer must
review 100 percent of that officer's adjudications. The less visa adjudication
experience an officer has, the greater the percentage of issuances that the
consular manager should review. As an officer gains experience and competence
over time, the percentage of issuances reviewed should decline as deemed
appropriate by the reviewing officer and ultimately conform to the norm
outlined above.
c. Unavailable
d. (U) If the chain of command
rule (see 9 FAM 403.12-2) results in a reviewing
officer who does not have a consular commission and title, that officer must
nevertheless review issuances. In such a
scenario, the review should focus on, but not necessarily be limited to,
the visa recipients likelihood to maintain lawful status in the United States
and not engage in activities beyond the scope of the visa category, including
his or her potential threat to people and property in the United States. Reviewing
officers should be alert to patterns of issuances that appear to fall outside
the general norms for a post, such as issuances to TCNs or applicants who
appear only marginally eligible, or unexplained overcomes of hard refusals.
While reviewing officers without recent consular
experience cannot be expected to know the breadth and depth of visa statutes
and regulations, they can add value to the issuance process by applying their
knowledge of national security threat assessments, local conditions, and global
trends. At posts with a single consular officer, the reviewer, adjudicating
officer, and Regional Consular Officer (RCO) must make issuances a regular
topic of discussion during the RCOs visits.
e. (U) If a reviewing officer as described in the above
paragraph concurs with the issuance, he or she, like any other reviewing
officer, must indicate his or her decision in the NIV Adjudication Review Form
in the CCD.
f. (U) Non-Concurrence With Issuance by Reviewing Officer:
(1) (U) If a reviewing officer
with a consular commission and title does not concur with the issuance, he or
she may assume responsibility and re-adjudicate the case. The reviewing
officer must discuss the case fully with the original adjudicating officer
before taking any action. The reviewing officer must not refuse an applicant
under INA 214(b) without re-interviewing the applicant in person or by phone
unless the disagreement involves a procedural error or a matter of law. If the
reviewing officer reverses the issuance and the visa has not yet been printed,
the applicant must be notified promptly. If the visa has been issued and
printed it must be revoked per 9 FAM 403.11.
The reviewing officer should enter a note in the NIV Adjudication Review Form in
the CCD and add a case note explaining the
reason for overturning the issuance.
(2) (U) A reviewing officer
without a consular commission and title may not issue or refuse a visa.
Therefore, if such a reviewing officer does not concur with the issuance, printing
of the case must be suspended, and the reviewing officer must:
(a) (U) Discuss the basis for
the original issuance, especially elements of fact, with the adjudicating
officer in a good faith attempt to arrive at a mutually acceptable final
adjudication of the application.
(b) (U) If such a discussion
cannot resolve the issue, the RCO, if the post is covered by an RCO, should be
consulted for his or her insight with a view to coming to a mutually
agreed-upon adjudication. If the discussion cannot occur in a timely fashion,
the case should be removed from the print queue and entered as an INA 221(g)
refusal pending the outcome of this larger review and discussion.
(c) (U) If the difference of
opinion is based upon a legal or procedural issue that cannot be resolved by
consulting Departmental guidance at post (the INA, FAM, CMH, cable guidance,
etc.), post should seek Visa Office guidance. Legal questions should be
referred to CA/VO/L/A and procedural questions to CA/VO/F.
(d) Unavailable
(e) (U) If, despite these
efforts, no mutually agreed-upon adjudication can be achieved, the issuance
stands. In any case, a note of the discrepancy must be made in the comment
field of the Form DS-160, Online Nonimmigrant Visa Application, and in the NIV
Adjudication Review Form in the CCD.