9 FAM 504.9
(U) Immigrant Visa Adjudications
(CT:VISA-919; 08-13-2019)
(Office of Origin: CA/VO/L/R)
9 fam 504.9-1 (U) RELATED
STATUTORY AND REGULATORY AUTHORITIES
9 FAM 504.9-1(A) (U)
Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
(U) INA 101(a)(16) (8 U.S.C.
1101(a)(16); INA 104 (8 U.S.C. 1104); INA 221(a) (8 U.S.C. 1201(a)); INA 222(b)
(8 U.S.C. 222(b)).
9 FAM 504.9-1(B) (U) Code of
Federal Regulations
(CT:VISA-1; 11-18-2015)
(U) 22 CFR 42.64; 22 CFR 42.68; 22
CFR 42.71.
9 FAM 504.9-1(C) (U) United
States Code
(CT:VISA-1; 11-18-2015)
(U) 5 U.S.C. 552a.
9 FAM 504.9-2 (U) Issuing or
Refusing Visas
(CT:VISA-919; 08-13-2019)
(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 504.11
for the refusal procedure and 9 FAM 305.2
and 9 FAM 305.4 for waiver relief.)
9 FAM 504.9-3 Unavailable
(CT:VISA-1; 11-18-2015)
Unavailable
9 FAM 504.9-4 (U) Restrictions on
Use of Passports
(CT:VISA-1; 11-18-2015)
a. (U) Application
Made Within Country of Passport Issuance: If an applicant for an
immigrant visa (IV) presents a valid passport in the country where it was
issued, and it is endorsed as not being valid for travel to the United States,
or an endorsement is needed to authorize such travel and this endorsement is
lacking, the consular officer shall not issue a visa until the restricting
endorsement has been removed from, or approving endorsement has been placed on,
the passport by the appropriate authorities or unless the passport requirement
has been waived under 22 CFR 42.2. The reason for this is two-fold:
(1) (U) No useful purpose
would be served in issuing a visa to an applicant who would, in effect, be
forbidden to depart for the purpose of using that visa; and
(2) (U) Issuance of a visa in
such circumstances could be regarded as an attempt to circumvent the laws or
regulations of the country in which the post is located.
b. (U) Application Made Outside
Country of Passport Issuance: If an alien with a passport containing a
restriction on travel to the United States applies for a visa in a country
other than the one which issued the passport, if the passport is otherwise valid
and the alien is otherwise eligible, a visa may be issued without regard to the
restriction.
9 FAM 504.9-5 (U) Informal
Evaluation of Family Members If Principal Applicant Precedes Them
(CT:VISA-209; 10-06-2016)
a. (U) Preliminary
Determination of Visa Eligibility: If a principal applicant proposes to
precede the family members to the United States, the consular officer may
arrange for an informal examination of the other members of the principal
applicants family in order to determine whether there exists at that time any
mental, physical, or other ground of ineligibility on their part to receive a
visa. If an informal examination of a member of a family is arranged as
provided for in 22 CFR 42.68, the consular officer should obtain clearances
from other posts and any background checks necessary to determine visa
eligibility.
b. (U) When
Family Member is Ineligible:
(1) (U) In the event any
member of the family is found to be potentially ineligible to receive an
immigrant visa, the principal applicant is to be so informed. A principal
applicant wishing to pursue the application MUST provide an acknowledgement of
notification of the family members potential ineligibility for an immigrant
visa. The acknowledgment of notification of family members potential
ineligibility for an immigrant visa is to be filed under the name of the
ineligible family member for reference purposes in the event the family member
should subsequently submit a visa application. The statement should be stamped
for destruction at the end of five years.
(2) (U) If the potentially
ineligible family member might benefit under the provisions of INA 212(g), (h),
or (i), the principal applicant should be so informed and advised that the
authority to invoke these sections is discretionary with the Department of
Homeland Security (DHS) and that no advance assurance can be given that the
admission of the principal applicants spouse or child will be authorized by
DHS.
c. (U) No
Guarantee of Future Eligibility: A determination in connection with an
informal examination that an alien appears to be eligible for a visa carries no
assurance that the alien will be issued an immigrant visa in the future. The
principal applicant shall be so informed and required to acknowledge receipt of
this information in writing. The question of visa eligibility can be
determined definitively only at the time the family member applies for a visa.
9 FAM 504.9-6 (U) Procedure If
Child Accompanied by Only One Parent
(CT:VISA-777; 05-13-2019)
(U) If a child is immigrating to
the United States with one parent and the other parent is remaining abroad, the
consular officer should ask the accompanying parent whether any legal
impediment might exist preventing the departure of the child. If the response
is inconclusive, the consular officer should defer final action on the
application and direct an informal inquiry to the local authorities in an
effort to learn whether a violation of local law might be involved. If so, the
local authorities would probably take action to prevent the childs departure
by lifting the childs travel document or by other measures. If the local
authorities do not take such action within a reasonable time, the officer
should proceed with the consideration of the visa application.
9 FAM 504.9-7 (U) Applicant with
Possible Claim to U.S. Citizenship
(CT:VISA-407; 07-20-2017)
(U) Under 22 CFR 40.2(a), a U.S.
citizen is not eligible to receive an immigrant visa. If an immigrant visa
applicant has a possible claim to U.S. citizenship, the visa officer should
refer the applicant to the post's citizenship and passport officer for a
resolution of the citizenship issue. If the matter cannot be resolved that
same day, the visa officer should deny the immigrant visa application under INA
221(g) pending resolution of the citizenship issue. Any doubts regarding the
applicant's U.S. citizenship status must be resolved before the visa officer
may take final action on the visa application. (See 9 FAM
503.2-4(B) and 9 FAM 202.1-2.)
9 FAM 504.9-8 (U) Release of
information regarding petitioners criminal convictions
(CT:VISA-643; 07-23-2018)
a. (U) Under 5 U.S.C. 552a, you
cannot disclose any record pertaining to a citizen or lawful permanent resident
(LPR) of the United States to any person or to another agency, except pursuant
to a written request by, or with the prior written consent of, the individual
to whom the record pertains, unless disclosure of the record falls under one of
the Privacy Acts enumerated exceptions. The Department, in consultation with
OMB, has determined that you may release information regarding certain criminal
convictions of a visa petitioner under the health and safety provision of the
Privacy Act, 5 U.S.C. 552a(b)(8), when you find compelling circumstances affecting
the health and safety of a beneficiary, such as when:
(1) (U) The petitioners
conviction relates to a criminal offense against a minor or a sexually violent
offense; and
(2) (U) Among the
beneficiaries of the petition, there is a visa applicant who will be a member
of the petitioners household. Disclosure may be made only if you intend to
approve the visa application. Before releasing the information, you must
verify that the information is accurate by conducting a search in the National
Sex Offender Public Registry or a comparable U.S. or State public criminal
registry, by entering the petitioners name, country and/or city/town, and zip
code, and comparing the information for the individual listed in the registry with
the available information regarding the petitioner. By searching for
information in such a registry, you will be undertaking reasonable efforts to
determine whether the information is accurate and to confirm that the
conviction has not been expunged from the petitioners record. If the search
produces verification of the current existence in the registry of information
concerning such a conviction that has not been expunged, you may disclose the
information to the visa applicant or to a minor applicants parent or
guardian. Disclosure must be limited to information concerning the
petitioners sex-crime conviction (and not any other criminal arrest or
conviction) that can be verified through a U.S. public criminal registry.
Appropriate case notes should be entered into Immigrant Visa Overseas (IVO) to
indicate that the applicant received notice of the petitioners criminal
history. After informing the applicant, give the applicant time to decide
whether he or she wishes to proceed with the visa application. Also, after the
disclosure is made, you must notify the petitioner in writing that you have
released information by sending notification to his or her last known address.
Sample text is found in paragraph c below. (You must obtain, through an advisory
opinion from the Advisory Opinions Division (CA/VO/L/A), Department approval of
the text of the notification before sending it to the petitioner.)
b. (U) Please contact CA/VO/L/A
before making any visa-related disclosures under the health and safety
exception to the Privacy Act aside from the disclosures outlined above.
c. (U) Sample
Notification to Petitioner:
[Date]
[Petitioner name]
[Last known address]
Dear ________________:
I am writing to notify you that, during a visa
interview on [date], we disclosed the following information to
__________________, a beneficiary of the petition for [indicate type] status
which you filed on [date]:
[List the information that was disclosed to the
beneficiary.]
[Only if applicable] We also provided a copy of
the attached documents at that time.
This disclosure of information took place on the
basis of [health and safety considerations for beneficiaries in light of the
information referenced above].
Sincerely,
[Name]
[Title]
d. (U) The guidance in this
note does not apply for K-visa cases involving petitions filed on or after
March 6, 2006. Those cases are governed by the International Marriage Brokers
Regulation Act of 2005 (IMBRA), Subtitle D of Public Law 109-162, Violence
Against Women and Department of Justice Reauthorization Act of 2005. You
should disclose to a K-visa applicant during the visa interview such
information regarding the petitioners conviction information provided by U.S.
Citizenship and Immigration Services (USCIS) in accordance with instructions
provided by USCIS in the individual cases. (See 9 FAM
502.7-3(D)(1) for additional
information on the disclosure of petitioner criminal conviction history, protection
orders, or restraining orders under IMBRA.)
e. (U) See 9 FAM
504.2-6(D)(1) for information about
convictions information and the Adam Walsh Act.