9 FAM 403.2
NIV Application
(CT:VISA-909; 08-02-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 403.2-1 Related Statutory
and regulatory Authorities
9 FAM 403.2-1(A) Immigration
and Nationality Act
(CT:VISA-1; 11-18-2015)
INA 101(a)(33) (8 U.S.C. 1101(a)(33)); INA 221(b) (8
U.S.C. 1201(b)); INA 222(c) (8 U.S.C. 1202(c)); INA 222(e) (8 U.S.C. 1202(e)).
9 FAM 403.2-1(B) Code of
Federal Regulations
(CT:VISA-1; 11-18-2015)
22 CFR 41.101; 22 CFR 41.103; 22 CFR 41.106.
9 FAM 403.2-2 Nonimmigrant visa
APPLICATION
(CT:VISA-817; 06-03-2019)
All necessary administrative steps should be taken to protect
the integrity of the nonimmigrant visa (NIV) process, preserve U.S. national
security, and facilitate legitimate travel to the United States. Consular
officers should ensure that NIV procedures are kept simple and consistent with
effective administration of existing laws and regulations. Posts should review
their procedures at intervals and revise workflow to adapt to changing
conditions. Every applicant is to be given prompt and courteous service.
9 FAM 403.2-3 Definition of
"Making a Visa Application"
(CT:VISA-506; 03-02-2018)
a. For a nonimmigrant visa (NIV) applicant,
"making a visa application" requires the applicant to complete three
components:
(1) Submit for formal adjudication by a consular
officer a completed Form DS-160, signed electronically by clicking the box
designated "Sign Application" in the certification section of the
application;
(2) Pay the required application fee (also known as
the MRV application fee) or provide evidence of prior payment of the
application processing fee, unless the applicant is exempt from paying the MRV
fee (see 9
FAM 403.4-3); and
(3) Provide any required biometric data. Biometric
data has not been provided until a photograph has been provided and
fingerprints, if required, have been collected. Fingerprints that have been
collected by a locally employed staff member or collected off-site by a
contractor meet this standard, even if they have not yet been verified by a
cleared American.
b. Applicants who have provided a photograph and who
have ten fingerprints on file from a previous application have provided all required
biometric data. Applicants who have two fingerprints on file from a previous
application, and who have been ten-printed by a contractor for verification via
IDENT, have provided the required biometric information.
c. Please note, per 9 FAM
302.1-8(B) (22 CFR 40.201), when an applicant explicitly
refuses to provide fingerprints, you must refuse the application under INA
221(g). This situation is not to be confused with a mere
failure to appear, or "no show."
d. Do not pre-screen or perform other work on a visa
case until after the required visa application fee has been paid unless entry
of a lookout is appropriate per 9 FAM
303.3-4(B). If the applicant has made an application as
defined above, but fails to pay a reciprocity fee, you must refuse the
application under INA 221(g) per 9 FAM
302.1-8(B) (22 CFR 40.201).
9 FAM 403.2-4 Place of
Application
(CT:VISA-221; 10-20-2016)
a. As described below, you must accept a nonimmigrant
visa (NIV) application in either of two circumstances: the alien is a resident
of the consular district, or the Department directs you to accept it. The
latter case is very rare. You should also accept a NIV application from an
applicant who is physically present in your consular district.
b. Generally the alien should make an application for a
nonimmigrant visa in the consular district in which he or she resides. (See 9 FAM
403.2-4(B) below about applicants physically present but not residents of a
consular district.)
9 FAM 403.2-4(A) Alien Who is Resident
in a Consular District
(CT:VISA-522; 03-14-2018)
a. 22 CFR 41.101 requires that you accept applications
from visa applicants resident in posts consular district, even though the
applicant may be absent from that district at the time of application. The
regulatory language does not specifically require an alien with a place of
residence in the district to be physically present in the district nor does it
restrict the applicants presence to any particular location at the time of
application.
b. Residence: Residence is
defined in INA 101(a)(33) as the aliens place of general abode; the ...
principal, actual dwelling place in fact, without regard to intent. In other
words, it is the place where the alien in fact lives and under most common
circumstances from which the alien conducts his or her life. It is not
necessarily the place where the alien actually is at any given moment.
9 FAM 403.2-4(B) Alien Who is
Physically Present But Not Resident in a Consular District
(CT:VISA-276; 01-05-2017)
22 CFR 41.101(a) gives you the discretion to permit an
alien who is physically present in your consular district to apply for a
nonimmigrant visa (NIV) outside his or her resident district. While 22 CFR
41.101(a) gives consular officers discretionary authority to reject
applications by persons who are physically present in but not residents of the
consular district, the Department expects that such authority will seldom, if
ever, be used.
9 FAM 403.2-4(B)(1) Physical
Presence
(CT:VISA-1; 11-18-2015)
Physical presence constitutes the fact of being in a
place at a given moment. This is a factual state or condition. Physical
presence differs from residence in that residence is the particular
location of a persons general abode, whereas physical presence is the
particular location of the person at the given time. Thus, although the
aliens general abode may be located in one place, the alien may be physically
present in another.
9 FAM 403.2-4(B)(2) Refusals
of Out-of-District Applicants
(CT:VISA-500; 02-13-2018)
For refusals concerning out-of-district applicants, please
see 9
FAM 403.10-2(B)(2).
9 FAM 403.2-4(C) Alien Who is Neither
Resident Nor Physically Present in a Consular District
(CT:VISA-1; 11-18-2015)
The provisions of 22 CFR 41.101(a) preclude acceptance or
processing of a regular type NIV application when the alien is neither a
resident of nor physically present in the consular district at the time of
application. Under no circumstances whatsoever may a consular officer accept an
application from, nor may an NIV be issued to, such an alien. For guidance on
A or G visas, or diplomatic and official type visas, which have different
requirements regarding physical presence, please see 9 FAM 402.3.
9 FAM 403.2-4(D) Redesignating
Consular Posts
(CT:VISA-1; 11-18-2015)
The Deputy Assistant Secretary for Visa Services may
designate the geographical areas over which consular posts have jurisdiction to
process nonimmigrant visas (NIV). This, however, does not affect an aliens
ability to apply for a NIV at any issuing consular post within the country of
the aliens residence. Department approval, however, is necessary before
countries with multiple visa-issuing posts can make changes to NIV application
policy. A cable, captioned for CA/VO/F, requesting approval of such authority
and outlining the country-wide plan should be made by the supervisory consular
officer in the country.
9 FAM 403.2-5 Nonimmigrant Visa
Application Forms
9 FAM 403.2-5(A) Nonimmigrant
Visa Application Forms
(CT:VISA-506; 03-02-2018)
a. Form DS-160, Online Nonimmigrant Visa Application,
is the application form prescribed under INA 222. Form DS-160 is available to
the general public at Consular Affairs Consular Electronic Application Center
(CEAC).
(1) The Form DS-160 is a completely electronic
nonimmigrant application procedure that includes an electronic signature,
replacing the paper Form DS-156.
(2) All information entered into Form DS-160 is
available to you at the time of the interview.
(3) You must ensure that Form DS-160 is properly and
promptly processed in accordance with the applicable regulations and
instructions.
b. If the Form DS-160 is unavailable and one of the
following conditions has been met, you may accept alternate paper forms. In
every case, you must scan in the paper forms into the NIV case:
(1) An applicant has urgent medical or humanitarian
travel and you have explicit permission from the Visa Office;
(2) The applicant is a student or exchange visitor who
must leave immediately in order to arrive on time for his/her course and you
have explicit permission from the Visa Office;
(3) The applicant is a diplomatic or official traveler
with urgent government business and the DS-160 has been unavailable for more
than four hours; or
(4) The DS-160 has been unavailable for more than three
days and you have explicit permission/guidance from the Visa Office.
c. If you accept a paper-based visa application form
pursuant to paragraph (b) above, you must follow the instructions on the
retention and disposition of nonimmigrant visa forms in 9 FAM 601.6-2.
9 FAM 403.2-5(B) Completion and
Use of Application Forms
9 FAM 403.2-5(B)(1) Information
to Include on Visa Application Forms
(CT:VISA-506; 03-02-2018)
a. Information to be Supplied by
Applicant: Form DS-160, Online Nonimmigrant Visa Application is the
application form prescribed under INA 222(c). All items on Form DS-160, must
be completed in English, unless otherwise noted on the form.
b. Applicants Names:
(1) An applicants first, middle, and family names
should be recorded throughout Form DS-160 exactly as they appear in the applicants
passport. In addition, the application should include any other names by which
the alien has ever been known; for example, maiden, religious, or professional
name, or aliases. The applicants name must also be provided not only in
English phonetics but also in the native linguistic characters; that is,
Chinese, Arabic, etc., if required for clearances.
(2) In certain cultures, an applicant may not have a
first name, but only a surname. In such cases refer to 9 FAM
403.9-2(A).
c. Affixing Photograph to
Nonimmigrant Visa Applications: The applicant will either
electronically upload a picture file into Form DS-160 or have his/her photo
taken at the time when the applicant submits to biometric collection at an
Applicant Service Center. In some cases, applicants who are unsuccessful in
uploading a photo may have to submit a physical photo to the consular section.
d. Electronic Record: 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) Record of clearances obtained, including the
dates;
(2) Record of revocation and cancellation of visa;
(3) Any further information which would be helpful in
reaching a decision if the alien reapplies for a visa; and
(4) Record of re-issuance of visa (in the event a
previous visa is spoiled or cancelled).
e. Notwithstanding information that may be recorded on
Form DS-160, you must enter electronic comments for each refusal, so that the
database record contains an indication of the evidence that led you to refuse
the visa. You should enter case notes for issued visas to provide information
about purpose of travel for ports of entry, public inquiries, fraud
investigations, etc. See also 9 FAM
403.9-2(B), Visa Issuance Case Notes.
f. Passports that do not list male or female: The sex
reflected on any issued visa should match the sex reflected on the passport
produced by an issuing authority. In those instances where a passport does not
list a male or female field, the applicant must select either male or
female for visa issuance.
9 FAM 403.2-5(B)(2) Alien Unable
to Complete the Application
(CT:VISA-1; 11-18-2015)
a. If the applicant is illiterate or unable to
complete the application, the applicant must be assisted by a third party. The
third party must be identified in the application. The third party can assist
the applicant in completing the application, but must instruct the applicant on
how to endorse the application on his/her behalf by clicking on the submit
application link to complete the application.
b. If the applicant is under the age of 16 or
physically incapable of completing an application, the aliens parents or
guardian may execute the application on his/her behalf. If the applicant has
no parent or legal guardian, the application may be completed by any person
having legal custody of, or a legitimate interest in, the applicant.
9 FAM 403.2-5(C) Translating
Visa Forms
(CT:VISA-276; 01-05-2017)
a. Form DS-160 is available to the general public at
Consular Affairs Consular Electronic Application Center and at CA's travel website
and is translated into most common foreign languages, including Arabic,
Simplified Character Chinese, Traditional Character Chinese, French, German,
Hebrew, Hindi, Indonesian, Italian, Japanese, Korean, Montenegrin, Persian
Farsi, Polish, Portuguese, Romanian, Russian, Spanish, Thai, Urdu, and
Vietnamese.
b. Other Translations: Posts
may provide an information sheet in local language(s) to assist applicants in
completing the DS-160. Information sheets must be accurate and the layout must
look as much like the English version of the DS-160 as possible. Department
approval is not required for translation; however, posts must forward a copy of
the translation to the Office of Field Operations (CA/VO/F). If you believe
that a tool-tip translation should be available you must submit a written
request to CA/VO/F detailing the need for the translation. VO/F will review
this request in conjunction with other interested offices within Consular
Affairs.
9 FAM-403.2-6 Managing Applications from Previously Refused
Applicants
9 FAM 403.2-6(A) Limiting
Applications From Previously Refused Applicants
(CT:VISA-506; 03-02-2018)
a. You may not institute a procedure requiring
applicants recently refused visas to submit new applications in writing outside
of the ordinary application process. Such procedures interpose an unnecessary
step in the visa process, which does not result in a visa adjudication and for
which no fees are collected.
b. Applicants who have previously been refused under INA
214(b) may reapply at any time. Applicants who are reapplying must follow the
same steps as first-time applicants: paying the MRV fee; submitting a new visa
application form and photo; having their biometric data taken; and being
interviewed by a consular officer.
c. Consider the following strategies to manage
workload from previously refused applicants:
(1) Ensure that you are collecting MRV fees according
to policy. An INA 214(b) refusal is a final adjudication. Using INA 221(g) to
avoid decisions or hold open the possibility for reapplication invites
abuse. You must require a new application and a new fee for
reconsideration.
(2) Stress NIV classification statutory requirements
and explain 214(b) during outreach, explaining in particular that U.S.
immigration law uses the term immigrant to describe those not eligible for a
nonimmigrant status described in INA 101(a)(15). That means that for the
purposes of NIV adjudication, immigrant means convicted felon, narcotics
trafficker, unauthorized employment, etc. as well as immigrant. Dispel the
notion that there is an element of luck in visa processing and that applicants
may be lucky the following week and be issued a visa. Emphasize the importance
of facts. This may be a particularly useful tactic in countries aspiring to
the Visa Waiver Program. Emphasize that repeat refusals contribute to the
overall refusal rate in a country.
(3) Use the appointment system to triage previously
denied applicants by limiting the number of slots for them.
(4) Alternatively, schedule previously refused
applicants on only a few days a month or during traditionally lower-volume
periods of the year (e.g., not during Summer Work-Travel season or pre-holiday
peak seasons). You must emphasize to line officers, however, the importance of
making clear to applicants that they may reapply if they believe that they
genuinely qualify since there is no formal appeal of an NIV refusal. Efforts
to control previous refusals must not unduly restrict applicants ability to
reapply.
(5) Review line officers interviewing techniques and
emphasize the importance of clearly explaining 214(b) to refused applicants.
The officer should state that the applicant has failed to convince the officer
that he or she is eligible for the visa per U.S. immigration law, which
requires visa applicants to demonstrate to the satisfaction of the consular
officer that they are entitled to a nonimmigrant status. You may paraphrase in
the manner you consider most effective, such as telling refused applicants that
they may not work without authorization in the United States on a tourist visa.
(6) Ensure every applicant refused under INA 214(b) receives
the appropriate refusal letter (see exemplars in 9 FAM
403.10-3(A)(3)). Train officers to emphasize the need for applicants to
wait until there has been a significant change in circumstances before
re-applying.
(7) Consider leaving re-application interviews until
all the days new cases are complete.
(8) Possibly assign one experienced officer to all
re-applications who can move through these promptly once new applications are
complete.
9 FAM 403.2-7 Deletion of
Nonimmigrant Visas (NIV) Cases
9 FAM 403.2-7(A) Efforts Made
to Close Nonimmigrant Visas (NIV) Cases
(CT:VISA-909; 08-02-2019)
a. You must follow instructions from 9 FAM 403.10
to issue or refuse cases at the time of application. This allows cases to be
closed out and minimizes the chances of an inadvertent visa issuance or
deletion.
b. In no case should you delete a case that meets the
criteria for having made a visa application as outlined in 9 FAM 403.2-3 above or a refusal from the system. Even
if the refusal is overturned, there must be a record of the original
adjudication and subsequent decisions. You should use the overcome/waive
functions in the NIV and IVO systems when appropriate (see 9 FAM
403.10-4(B) and 9 FAM
504.11-4(A)). You should only delete cases from the system when no visa
application has been made per 9 FAM 403.2-3,
or when a case is clearly a duplicate entered in error. Some posts may still
have test cases in the system entered during IVO or NIV system installations.
You may delete those cases. Only consular officers may authorize the
deletion of a case. The accountable consular officer (ACO) or appropriate
consular manager must review end-of-day reports daily to monitor deletions,
paying close attention to the reason for deletion in each case.
9 FAM 403.2-7(B) Deletion Does
Not Purge Consular Consolidated Database (CCD) Records
(CT:VISA-909; 08-02-2019)
Deletion of nonimmigrant visas (NIV) records is a tool to be
carefully used at post to help ensure the accuracy of post records and the
Consular Consolidated Database (CCD). Deleted cases will no longer be
available in posts database, but they may be found in the CCD using the
Deleted NIV Applicant Full report under the Nonimmigrant
Visa tab in the CCD menu.
9 FAM 403.2-7(C) Deletion of
Duplicate Cases
(CT:VISA-506; 03-02-2018)
From time to time you may find that duplicate cases have
been created, either because of human error or problems associated with the
database locking out an earlier case. If a single application has been entered
more than once, posts must delete any duplicate cases after entering a case
note that reflects the reason for this action. Once a case has been printed on
a visa foil, it cannot be deleted. A case in refused status cannot be
deleted. In both instances, the automated visa processing system will not
allow the deletion. You must take particular care to ensure that proper
procedures are followed with overcoming previous refusals. If post discovers
that a case has been opened for overcome and/or waive in error, you should
refuse the case again under 221(g) with a case note reflecting the error. You
should not delete the case.
9 FAM 403.2-7(D) Procedures
When Provisional Cases Are Created With Appointment Systems
(CT:VISA-909; 08-02-2019)
Some posts have implemented appointment systems in which
they created cases when appointments were made. Posts should delete these
cases only if an application has not been formally made (see 9 FAM 403.2-3
above). If an application has been made,
you must formally refuse the applicant under INA Section 221(g). You should
never create cases for purposes of showing fee paid status or to begin
clearance procedures prior to actual application.