9 FAM 504.11

(U) IMMIGRANT VISA REFUSALS

(CT:VISA-703; 10-23-2018)
(Office of Origin: CA/VO/L/R)

9 fam 504.11-1 (U) statutory and regulatory Authorities

9 FAM 504.11-1(A) (U) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 212(a) (8 U.S.C. 1182(a)); INA 212(b) (8 U.S.C. 1182(b)); INA 212(e) (8 U.S.C. 1182(e)); INA 221(g) (8 U.S.C. 1201(g)).

9 FAM 504.11-1(B) (U) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 40.6; 22 CFR 42.81; 22 CFR 42.83.

9 FAM 504.11-2 (U) Refusal Policy

9 FAM 504.11-2(A) (U) Visa Issued or Refused if Application Properly Completed and Executed

(CT:VISA-1; 11-18-2015)

a. (U) There are no exceptions to the rule that once a visa application has been properly completed and executed before a consular officer, a visa must be either issued or refused. (See 9 FAM 504.9-2.) For statistical and comparison purposes, all posts should follow the identical refusal procedures and report refusals the same way in their required reports of visas issued and refused. (See 9 FAM 504.3-2.) Accordingly, any alien to whom a visa is not issued by the end of the working day on which the application is made, or by the end of the next working day if it is normal post procedure to issue visas to some or all applicants the following day, must be found ineligible under one or more provisions of INA 212(a), 212(e), or 221(g). (INA 221(g) is not to be used when a provision of INA 212(a) is applicable.) This requirement to find an applicant ineligible when a visa is not issued applies even when:

(1) (U) A case is medically deferred;

(2) (U) The post requests an advisory opinion from the Department;

(3) (U) The post decides to make additional local inquiries or conduct a full investigation; or

(4) (U) The only deficiency is a clearance from another post.

b. (U) There is no such thing as an informal refusal or a pending case once a formal application has been made.

9 FAM 504.11-2(B) (U) Guidelines on Grounds for Refusals

(CT:VISA-89; 03-09-2016)

(U) You should refer to relevant sections of 9 FAM 502 for guidance on qualifications for specific categories of visas and 9 FAM 302 for detailed explanations of grounds of ineligibility. Guidelines for determining the applicable INA provisions as grounds of refusal in varying circumstances follow:

(1) (U) When a spouse or child of the principal alien is ineligible for a visa and the principal alien and remainder of the family decide to wait until the ineligible person has overcome the ineligibility, the spouse or child should be refused under the pertinent section(s) of INA 212(a), 212(e), or 221(g). The remainder of the family should be refused under INA 221(g).

(2) (U) When the principal alien only is ineligible, the principal alien should be refused under the pertinent grounds of INA 212(a), 212(e), or 221(g). Other family members should be refused under INA 221(g).

(3) (U) When an applicant is delayed for suspected tuberculosis, the applicant and family members who wish to wait and travel with the applicant should be refused under INA 221(g). If further tests indicate ineligibility under INA 212(a)(1)(A)(i), a new refusal under that section should be made for the afflicted applicant only.

(4) Unavailable

(5) Unavailable

9 FAM 504.11-3 (U) Refusal Procedures

(CT:VISA-1; 11-18-2015)

(U) If you determine that the applicant is not eligible for a visa, the following procedures should be followed.

9 FAM 504.11-3(A) (U) Refusal Cases

9 FAM 504.11-3(A)(1) (U) Inform the Alien Orally and in Writing

(CT:VISA-580; 05-01-2018)

a. (U) Manner in Refusing Applicants:

(1) (U) You should convey visa refusals in a sympathetic but firm manner. The manner in which visa applications are refused can be very important in relations between the post and the population of the host country. You must be careful not to appear insensitive.

(2) (U) You should aim for a measured, sympathetic but firm style which will convince the ineligible applicant that the treatment accorded was fair. You should refer to pertinent statements of the applicant, written or oral, or to a conviction, medical report, false document, previous refusal, or the like, as the basis of the refusal. You should then explain the law simply and clearly.

b. (U) INA 212(b) requires officers to provide timely written notice that the alien is inadmissible. The written notification should provide the alien (and the attorney of record) with:

(1) (U) The provision(s) of law on which the refusal is based;

(2) (U) The factual basis for the refusal (unless such information is classified); please also see "Exceptions to Notice Requirements" below;

(3) (U) Any missing documents or other evidence required;

(4) (U) What procedural steps must be taken by you or the Department; and

(5) (U) Any relief available to overcome the refusal. See 9 FAM 302 for information about the availability of waivers of ineligibility.

c. (U) Exceptions to Notice Requirement: INA 212(b), which requires you to provide the applicant with a timely written notice in most cases involving a 212(a) refusal, also provides for a waiver of this requirement. However, only the Department may grant a waiver of the written notice requirement. Furthermore, although 212(b) also exempts findings of ineligibility under INA 212(a)(2) and (3) from the written notice requirement, it is expected that such notices will be provided to the alien in all 212(a)(2) and (3) cases unless:

(1) (U) The Department instructs you not to provide notice;

(2) (U) The Department instructs you to provide a limited legal citation (i.e., restricting the legal grounds of refusal to 212(a)); or

(3) (U) In response to a request, you receive permission from the Department not to provide notice.

d. (U) 212(a) Refusal Letter:

(1) (U) For a 212(a) IV refusal, posts may draft the refusal letter in the manner they deem appropriate and without Departmental approval. However, the letter must:

(a) (U) Explicitly state the provision of the law under which the visa is refused, unless advised otherwise by the Department;

(b) (U) Neither encourage nor discourage the applicant from reapplying; and

(c) (U) Inform the applicant whether a waiver is available.

(2) (U) Alternatively, posts may elect to use the optional refusal letter found at 9 FAM 403.10-3(A)(3), or they may choose to modify the letter as necessary. If posts use a modified version, the letter must meet the criteria listed in paragraph 1 above.

e. (U) 221(g) Refusal Letter:

(1) (U) For a 221(g) IV refusal, posts may draft the refusal letter in the manner they deem appropriate and without Departmental approval. However, the letter must:

(a) (U) Explicitly state the provision of the law under which the visa is refused;

(b) (U) Neither encourage nor discourage the applicant from reapplying; and

(c) (U) Include the following language:

(i) (U) Please be advised that for U.S. visa purposes, including ESTA (see the ESTA website), this decision constitutes a denial of a visa.

(ii) (U) This language should be included for denials of applicants for petition-based visas only:

If you fail to take the action requested within one year following visa denial under Section 221(g) of the Immigration and Nationality Act, then your petition will be permanently terminated under INA Section 203(g).

(2) (U) Alternatively, posts may elect to use the optional refusal letter found at 9 FAM 403.10-3(A)(3) or they may choose to modify the letter as necessary. If posts use a modified version, the letter must meet the criteria listed in 9 FAM 403.10-3(A)(3) paragraph a.

f. (U) Procedure for Entering a 221(g) Refusal in the System:

(1) (U) In order to obtain the best data on refusals, officers must enter an individual 221(g) refusal for each document requested or reason for 221(g) refusal. For consistency across posts, officers must use standard language or abbreviations (see table below) when entering the reason for the 221(g) refusal in the annotation text box in the refusal screen. Local names of common documents may not be used. A longer explanation may be included in the case notes.

(2) (U) If you are specifically requesting an original document, you should note it by writing original or Or in front of the document name or abbreviation below. If the document requested is specifically for the petitioner, note it by writing petitioner or pet in front of the document name.

 

9 FAM 504.11-3(A)(2) (U) Submit Case for Supervisory Review

(CT:VISA-265; 12-12-2016)

a. (U) The adjudicating officer must send the file to the designated supervisory officer. The supervisory officer must:

(1) (U) Review the case; and

(2) (U) Confirm or disagree with the refusal. The supervisor should use the adjudication review tool in the CCD to review all IV refusals that cannot be overcome by the presentation of additional evidence per 22 CFR 42.81(c). Supervisors should review adjudications in the CCD so there is a record of the review available outside of the local IVO system. The CFR does not mandate reviewing issuances or 221g refusals, but CA considers that to be a prudent practice and leaves to supervisors discretion which IV issuances warrant review. Depending on applicant pool, fraud environment, officer experience, etc., supervisors may elect to review more or fewer of these cases.

b. (U) The Department's regulation at 22 CFR 42.81(c) specifies that the supervisor must review the refusal on the day of the refusal or as soon thereafter as is administratively possible (no later than 30 days after the refusal, in any event). When the basis for the refusal is not entirely straightforward, the supervisor should review the case immediately.  If the reviewing officer does not concur in the refusal, that supervisor must either refer the case to the Department for an advisory opinion or assume personal responsibility for the case. If the supervisor reverses the refusal decision, the applicant should be promptly notified. The original refusing officer should be advised before the applicant is notified. (See 9 FAM 504.11-3(A)(3) below.)

9 FAM 504.11-3(A)(3) (U) Discussion by Reviewing Officer

(CT:VISA-580; 05-01-2018)

a. (U) The regulations indicate only two possible actions for a reviewing officer who disagrees with a refusal:

(1) (U) Submission of the case to the Department; or

(2) (U) Personal assumption of responsibility by reversing the refusal.

b. (U) The reviewing officer should discuss the case fully with the refusing officer before taking either action. The principles of good management require that the refusing officer be involved in any action possibly bearing on the refusing officer's judgment and performance. Also, in the course of discussion, the reviewing officer may become aware of additional facts that the refusing officer did not make clear in the refusal worksheet. Most important, the refusing officer will learn more about the visa function and the application of some of the more complicated laws and regulations in visa work. Ideally, any differences will be worked out in the discussion and the refusing officer, not the reviewing officer, will take whatever action is necessary. Only if there is no resolution should the reviewing officer take the actions specified in 22 CFR 42.81(c), and then only after the refusing officer has been informed what the action will be and why.

9 FAM 504.11-3(A)(4) (U) Entering Refusals

(CT:VISA-654; 07-31-2018)

a. Unavailable

b. (U) Refusals entered into the automated system are automatically updated to the Consular Lookout and Support System (CLASS). (See 9 FAM 303.3.) See 9 FAM 504.11-3(A)(1) paragraph f above for information about entering 221(g) refusals.

c. Unavailable

d. Unavailable

e. (U) See 9 FAM 504.3-2 for information about the required reports of immigrant visas issued and refused (report 28).

9 FAM 504.11-3(A)(5) (U) The Refusal File

(CT:VISA-1; 11-18-2015)

(U) The Refusal File Consists of the Following:

(1) (U) One copy of each document presented by the applicant; and

(2) (U) Any document(s) pertaining to the alien's ineligibility in the Category I or Category II refusal files, as applicable. (Category I includes cases under INA 212(a)(1), (2), (3), (6), and (8). Category II encompasses all other refusal categories.)

9 FAM 504.11-3(B) (U) Quasi-Refusal Cases

9 FAM 504.11-3(B)(1) (U) Informing Alien of Apparent Ineligibility

(CT:VISA-703; 10-23-2018)

a. (U) The Decision to Issue or Refuse a Visa Can Be Made Only After an Applicant has:

(1) (U) Executed an application for a visa;

(2) (U) Presented all the documentation required by law; and

(3) (U) Paid the prescribed fee.

b. (U) If an alien who has not filed a formal application inquires about eligibility for a visa, and it appears from statements made or evidence presented that the alien would be ineligible to receive a visa and that no exemption applies, you should point out the pertinent section of the law to the alien. The alien should be informed that the evidence and general circumstances described might bring the case under the cited INA provision.

c. (U) Entering Quasi-Refusal into CLASS: If, after being informed of the apparent ineligibility, the alien decides not to submit a formal application, the situation does not constitute a formal refusal and it should not be reported as such by the post. A lookout entry, however, may be appropriate. If so, the name should be entered into CLASS. (See CLASS Refusal/Lookout Codes and Historical CLASS Refusal/Lookout Codes.)

d. (U) Supervisors should use the electronic review feature in the CCD to conduct Immigrant Visa adjudication reviews. Supervisors without a consular commission are not required to conduct an electronic review, but should make IV adjudication standards a part of regular discussion and counseling. At posts in the Regional Consular Officer program, RCOs will provide consultation on IV adjudications as part of their visits and discuss issues with officers, but do not perform formal adjudication review.

9 FAM 504.11-3(B)(2) (U) If an Advisory Opinion (AO) is Required

(CT:VISA-580; 05-01-2018)

a. (U) Procedures in cases deferred for advisory opinions or other reasons: If, after interviewing the applicant, you decide that an advisory opinion is necessary, you must first refuse the alien under INA 221(g). The record copy of the request for advisory opinion should be attached to the documents retained and filed in the post's A-Z file. Documents should not be returned to the applicant until final action is taken. The post must use a tickler system as a reminder to send a follow-up request for a response after a reasonable period of time has elapsed. If it is later determined on the basis of the Department's advisory opinion that the alien is ineligible under a provision of INA 212(a) or INA 212(e), the alien should then be refused under the pertinent section. Under no circumstances should a final resolution of the question of eligibility be made before the Department's advisory opinion is received. The same procedure is to be followed if the medical examiner is unable to make a determination under INA 212(a)(1) for want of further x-rays, tests, etc., and defers the case for a given time. This procedure is also to be followed in other situations where the alien has formally applied, but a final determination is deferred for additional evidence, further clearance, name check, or some other similar reason.

b. (U) Cases Involving Classified Information Reported to Department: See 9 FAM 701.5-2(B) for required reports.

9 FAM 504.11-4 (U) Overcoming or Waiving a Refusal

9 FAM 504.11-4(A) (U) Overcoming a Refusal

(CT:VISA-504; 02-15-2018)

a. (U) You should find that an applicant has overcome an immigrant visa (IV) under INA 221(g) in two instances: when the applicant has presented additional evidence, allowing you to re-open and re-adjudicate the case, or when the case required additional administrative processing, which has been completed. An IV applicant missing a birth certificate, for instance, should be refused INA 221(g) pending that certificate (see 9 FAM 403.10-3(A) for guidance on INA 221g refusals). When the applicant returns with the document, you should overcome the previous refusal, allowing the case to be adjudicated.

b. (U) Similarly, if an applicant refused under INA 212(a)(4) subsequently presents sufficient evidence to overcome the public charge inadmissibility, you should process the case to completion. 22 CFR 42.81(e) "limits the period of review of an IV refusal to one year from the date of refusal." 9 FAM 302.8-2(B)(5) provides guidance on when to use INA 221(g) and when INA 212(a)(4) would be more appropriate.

c. Unavailable

9 FAM 504.11-4(B) (U) Waiving an Immigrant Visa (IV) Inadmissibility

(CT:VISA-1; 11-18-2015)

(U) There is no waiver available for refusals under INA 221(g). DHS has the authority to waive most IV ineligibilities. (See 9 FAM 305.2 for information about the availability of IV waivers.)

9 FAM 504.11-4(C) (U) Fees

(CT:VISA-1; 11-18-2015)

a. (U) Applicant has One Year to Overcome Refusal to Avoid New Fee: Under 22 CFR 42.81(e), a refused alien need pay no new application fee if evidence is presented overcoming the ground of ineligibility within one year of the date of refusal.

b. (U) No New Fee Required in Certain Other Cases: See 9 FAM 504.6-5(B).

c. (U) Reconsidering Refusal After One Year: As long as the applicant is still entitled to visa status, reconsideration may be given to the case at any time. If more than one year has elapsed, however, a new application and fee must be taken prior to the approval of the case and to the issuance of a visa. (See 22 CFR 42.43, Suspension or Termination of Action in Petition Cases and 22 CFR 42.83, Termination of Registration.)

9 FAM 504.11-4(D) (U) Visa Annotation With Refusal Overcome

(CT:VISA-1; 11-18-2015)

a. (U) In cases where an alien's name has been entered into CLASS as a formal INA 212(a) refusal, and the grounds for refusal are subsequently overcome for whatever reason, annotate the visa to reflect that the bearer has overcome the ineligibility. This is necessary because all INA 212(a) CLASS entries are also shared with the other U.S. border security systems and deletion from these systems may take several months. Meanwhile the alien will be subject to secondary inspection unless there is a notation on his or her visa.

b. (U) Posts should not confuse this annotation procedure with specific waiver information. Where an ineligibility is waived rather than overcome, posts should continue to annotate the visa with the waiver information.