9 FAM 403.7
(U) NIV Adjudication
(CT:VISA-856; 06-11-2019)
(Office of Origin: CA/VO/L/R)
9 FAm 403.7-1 (U) niv
adjudication
(CT:VISA-346; 04-18-2017)
Unavailable
9 FAM 403.7-2 (U) Adjudicating
Officer Responsibilities
(CT:VISA-856; 06-11-2019)
(U) Adjudicating officers have the
responsibility to make the following determinations:
(1) (U) Is
the Applicant Qualified Under INA Section 101(A)(15)? With limited
exceptions, all visa applicants are presumed to be immigrants (and thus not
eligible for a nonimmigrant visa (NIV)) unless and until they satisfy you that
they qualify for one of the NIV categories defined in INA Section 101(a)(15). When
adjudicating NIV applications, you must be careful to recognize that the
standards for qualifying for an NIV are found in the relevant subsections of
101(a)(15) and corresponding regulations and FAM guidance, not in 214(b)
itself. (See 9
FAM 302.1 for information about 214(b) refusals.)
(2) (U) What
is the Correct Classification? You must determine the appropriate
nonimmigrant classification for the applicants primary purpose for coming to
the United States, in accordance with INA 101(a)(15). For example, the
consular officer should classify as F-1 or M-1 an alien seeking to enter the
United States as a student who desires, prior to entering an approved school,
to make a tourist trip of not more than 30 days within the United States.
Also, when a family members primary purpose to come to the United States is to
accompany the principal, the classification of the accompanying family member
is either of a derivative of the principal if the classification provides or as
a B-2, if not. This is the case, even if the accompanying family member decides
to attend school. (See 9 FAM 402.1)
(3) (U) Is
the Applicant Credible? You must assesses the credibility of the
applicant and the evidence submitted to determine qualifications under
101(a)(15). You must be satisfied that the applicant will credibly engage in
the activities authorized under the particular NIV classification, that the
alien will abide by the conditions of that nonimmigrant category, and that the
alien will thereby maintain lawful status.
(4) (U) Have
All Necessary Clearances Been Conducted? You must conduct as complete a
clearance as is necessary to establish the eligibility of an applicant to
receive a visa. (See 9 FAM 403.6 and
9 FAM
307.3-2.)
(5) Unavailable
(6) Unavailable
(7) (U) Is There a Waiver Available
for an Ineligible Applicant? There is no waiver available for refusals
under INA 214(b) and INA 221(g). DHS has the authority to waive most IV and
NIV ineligibilities. INA 212(d)(3)(A) waivers in NIV cases require an initial
waiver recommendation from you or the Department. (See 9 FAM 305.4-2,
for information on NIV waivers under INA 212(d)(3)(A), and 9 FAM 305.2
and 305.3 for IV and NIV waivers.)
9 FAM 403.7-3 (U) Adjudication
Procedures
(CT:VISA-1; 11-18-2015)
(U) Once an application has been
executed, you must either issue the visa or refuse it. You cannot temporarily
refuse, suspend, or hold the visa for future action. If you refuse the visa,
you must inform the applicant of the provisions of law on which the refusal is
based, and of any statutory provision under which administrative relief is
available. (See 9 FAM 403.10
for NIV refusal procedures and 9 FAM 305.3
for waiver relief.)
9 FAM 403.7-3(A) (U) Use of
Application Forms
(CT:VISA-828; 06-03-2019)
a. (U) Notwithstanding
information that may be recorded on Forms DS-160 or 156, you are reminded that
electronic comments must be entered for each refusal, so that the database
record contains an indication of the evidence that led the adjudicating officer
to refuse the visa. You are also strongly encouraged to enter case notes for
issued visas to include justifying an issuance over potentially derogatory
information in CLASS, CNS, FR, IACT, IDENT, NGI/IAFIS, PATRIOT, case notes, the
visa application form(s), and the visa record (9 FAM 403.7-2).
b. (U) When reviewing Form DS-160,
your review of the application will be recorded electronically. Your
electronically recorded review of the application will indicate which officer
determined the eligibility and proper classification of the applicant.
c. (U) If you have accepted
paper-based nonimmigrant visa application forms pursuant to 9 FAM
403.2-5(B)(1) you must initial all paper application forms. Your initials
indicate that you have determined the eligibility and proper classification of
the applicant, unless the visa is refused and a notation of the refusal is made
on the application.
d. (U) In addition to
information concerning the issuance or refusal of the visa, the electronic
record of the visa application in the NIV or Immigrant Visa Overseas (IVO)
system includes the following information:
(1) (U) Record of clearances
obtained, including the dates;
(2) (U) Record of revocation
and cancellation of visa;
(3) (U) Any further
information which would be helpful in reaching a decision if the alien
reapplies for a visa (i.e., a case note that the applicant is well and
favorably known to the consular officer might eliminate the need for requests
for other evidence of eligibility); and
(4) (U) Record of re-issuance
of visa (in the event a previous visa is spoiled or cancelled).
9 FAM 403.7-3(B) (U) Requesting
Additional Information
9 FAM 403.7-3(B)(1) (U) Supporting
Documentation
(CT:VISA-35; 01-19-2016)
a. (U) If additional data is
needed to supplement the information contained on Form DS-160 so that you can
determine the eligibility of an applicant, such data should be obtained by
telephone, mail, or during the interview Pertinent information should be
recorded in the NIV system.
b. (U) Unlike immigrant visa
(IV) applicants, nonimmigrant visa (NIV) applicants are not required to submit
extensive documentation in support of their cases. You should carefully
consider whether to require them of applicants. If local documents are
unreliable, easily and often forged, or otherwise implausible, you should
consider the utility of requiring them of applicants as they add no value to
the NIV adjudication. Remember that the burden of proof for establishing
eligibility for the NIV classification lies with the applicant.
c. (U) You should not use a
request for additional documentation as a way to postpone your decision on a
case, especially if the documentation you are requesting is not required for
that visa category, or not reliable in that country. You should use refusals
under INA 221(g) for additional documentation sparingly.
d. (U) Posts should generally
have a policy that officers review their own 221(g) cases to ensure consistency
in adjudication. It is also a useful training tool, as officers often quickly
learn that the additional documentation they request may not assist in making a
determination of eligibility.
e. (U) Pertinent information
should be recorded in the case notes, and any pertinent documentary evidence
submitted by the applicant should be scanned into the applicants case.
f. (U) You should avoid
routinely retaining documents that are submitted in support of an NIV
application but which do not directly serve to establish the applicants
eligibility. Documents that are directly applicable to the case should be
scanned into the Consular Consolidated Database (CCD) record. These documents
may be returned to the applicant or destroyed.
g. (U) Minor errors that are
discovered during intake of an applicants DS-160 including but not limited to
spelling mistakes, incorrect dates, etc., may be noted in the appropriate
remarks sections of the DS-160 and should be updated by the consular officer
with the correct information in the NIV system, if necessary. If a correction
is made, a remark must also be added to the case notes explaining the revision,
a remark may be added to the DS-160 but is not required. However, if the
correction is considered material to adjudication or would result in additional
unanswered questions, this is a major correction and you must 221(g) the case
and have the applicant submit a new or revised application.
9 FAM 403.7-3(B)(2) (U) Medical
Examinations for NIV Applicants
(CT:VISA-1; 11-18-2015)
(U) With the exceptions listed in 9 FAM 302.2,
medical examinations generally are not required for nonimmigrant visa
applicants. You may, however, require a nonimmigrant applicant to undergo a
medical examination if you have reason to believe that the applicant may be
ineligible for a visa under INA 212(a)(1). (See also 9 FAM 302.2
for further information on medical examinations.)