9 FAM 301.3
(U) Eligibility Classification Requirements
(CT:VISA-793; 05-16-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 301.3-1 (U) Statutory and
Regulatory Authorities
9 FAM 301.3-1(A) (U) Immigration
and Nationality Act
(CT:VISA-759; 04-09-2019)
(U) INA 101(a)(3) (8 U.S.C.
1101(a)(3)), INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(27) (8 U.S.C.
1101(a)(27)); INA 201 (8 U.S.C. 1151); INA 203 (8 U.S.C. 1153).
9 FAM 301.3-1(B) (U) Code of
Federal Regulations
(CT:VISA-1; 11-18-2015)
(U) 22 CFR 41; 22 CFR 42.
9 FAM 301.3-2 (U) Eligibility for
Visa Classification
(CT:VISA-793; 05-16-2019)
a. (U) Visa applicants must
demonstrate that they fit within a group of people authorized to apply for a
visa; these groups are called classifications, and are established in the
Immigration and Nationality Act. Most nonimmigrant classifications are
outlined in INA 101(a)(15), and immigrant classifications are established in INA
201 and 203.
b. (U) The INA sets out the
legal requirements for each classification. Visa regulations for each
classification establish what must be demonstrated to show that an applicant is
eligible for that classification. For example, an alien spouse of a U.S.
citizen (INA 201(b)(2)) must demonstrate that he or she is a spouse, in
accordance with U.S. laws and regulations, to qualify for an immigrant visa as
an "immediate relative." As another example, an alien visitor for
pleasure under INA 101(a)(15)(B) must show that his or her purpose of travel
fits within the regulatory definition for pleasure, 22 CFR 41.31, and that he
or she has a residence abroad which the alien has no intent of abandoning. For
residence abroad, see 9 FAM
401.1-3(F)(2). As a further example, a student seeking a nonimmigrant visa
under INA 101(a)(15)(F)(i) must be a bona fide student qualified to pursue a
full course of study, have a residence abroad he or she does not intend to
abandon, and have been accepted to pursue a full course of study at a
DHS-approved institution.
c. (U) In all cases, consular
officers must verify that applicants are entitled to the visa classification
for which he or she has applied. See discussion of individual classifications
in 9
FAM 402 (nonimmigrants) and 9 FAM 502
(immigrants) for specific requirements to establish entitlement to each
classification. Note also instructions on the significance of DHS approval of
petitions (for example, see 9 FAM 402.10-9(A)
related to nonimmigrant H petitions,
or 9 FAM
502.3-4(D) on petitions for adoptees under the 1993 Hague Convention on
Protection of Children and Co-operation in Respect of Intercountry Adoption
(Convention)).
d. (U) See also 9 FAM 301.1
for a general overview on eligibility for visas. Eligibility for the visa classification
is only one element in visa adjudication; applicants must also complete all
documentary and procedural requirements and must show that they are not subject
to ineligibilities or grounds for refusal.
9 FAM 301.3-3 (U) Visa APPLICATIONS
FROM APPLICANTS WHO MAY BE U.s. Citizens
(CT:VISA-770; 04-30-2019)
a. (U) You may not issue a visa
to an individual unless you are satisfied that the applicant is an alien. An
alien is defined at INA 101(a)(3) as "any person not a citizen or national
of the United States." If a visa applicant has a U.S. passport or Consular
Report of Birth Abroad (CRBA) application pending, you should refuse the visa
application under INA 221(g) pending resolution of the citizenship issue unless
the Department authorizes visa issuance.
b. (U) Applicants born in the United
States: An applicant born in the U.S. may be an alien if i) he or she
formally relinquished U.S. citizenship and obtained a Certificate of Loss of
Nationality (CLN) from the Department; or ii) he or she was born in the United
States, but not subject to the jurisdiction of the United States, which occurs
if the a child was born to a foreign mission member parent who enjoyed diplomatic
agent level immunity at the time of the child's birth, assuming the other
parent was not a U.S. citizen. If the applicant was born in the United States,
you may only issue a visa if you are satisfied that the applicant relinquished
citizenship, if non-citizenship is established by conducting a "CFMM"
(Children of Foreign Mission Members) check as described below, or if the
Department authorizes visa issuance.
c. (U) Applicants born in the United
States to foreign mission members (CFMM): Most
persons born in the United States acquire U.S. citizenship at birth under INA
301. The 14th Amendment of the U.S. Constitution also provides that, All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside.
(1) (U) Foreign mission
members who enjoy diplomatic agent level immunity are not subject to, or, in
other words, are immune from, the jurisdiction of the receiving state. This
means that their U.S.-born children (CFMMs) also are not born subject to the
jurisdiction of the United States and do not acquire U.S. citizenship at birth.
(2) (U) The diplomatic status
and immunities of any U.S.-born visa applicant to whom the Department has not
issued a CLN must be assessed through a CFMM check
before he or she may be issued a U.S. visa.
(3) (U) In unusual cases where
the CFMM check does not result in a conclusive determination of the applicant's
citizenship, a visa may be issued upon consultation with L/CA and L/DL if the
applicant is otherwise eligible for a visa. In such cases, the consular
officer should consider the applicant to be an alien.
(4) (U) You should refuse the
visa under INA 221(g) and request a CFMM check for any U.S.-born applicant who
has not relinquished U.S. citizenship as described in paragraph b above.
(a) Unavailable
(b) Unavailable
(c) Unavailable
d. (U) Applicants Born Outside the
United States: Do not use the CFMM Check process for individuals born
outside the United States. If you are satisfied that the individual is an
alien despite United States citizen parentage, you may issue a visa if the
applicant is otherwise qualified. If you are not satisfied that the applicant
is an alien, you may refuse the visa under INA 221(g) and request additional information from the
applicant. For guidance on children seeking expeditious
naturalization under INA 322 with a B nonimmigrant visa, see 9 FAM
402.2-4(B)(7). If you have
any questions, you may submit an Advisory Opinion request to VO/L/A.