9 FAM 302.14 (U) INELIGIBILITY BASED ON SANCTIONED ACTIVITIES - INA 212(A)(3)(C), INA 212(F) AND PP 8693

Start Date: Wednesday, September 25, 2019

Last Modified: Saturday, May 2, 2020

End Date: Friday, December 31, 9999

UNCLASSIFIED (U)

9 FAM 302.14

(U) Ineligibility based on Sanctioned activities - INA 212(a)(3)(C), INA 212(f) and PP 8693

(CT:VISA-896; 07-18-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 302.14-1 (U) Statutory and REgulatory Authority

9 FAM 302.14-1(A) (U) Immigration and Nationality Act

(CT:VISA-272; 12-20-2016)

(U) INA 212(a)(3)(C) (8 U.S.C. 1182(a)(3)(C)); INA 212(a)(3)(D)(iv) (8 U.S.C. 1182(a)(3)(D)(iv)); INA 212(f) (8 U.S.C. 1182(f)).

9 FAM 302.14-1(B) (U) Public Laws

(CT:VISA-272; 12-20-2016)

(U) Section 401 of the Cuban Liberty and Democratic Solidarity (Libertad) Act (Public Law 104-114); Section 616 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public 105-277); Section 3205 of the Military Construction Appropriations Act, 2001 (Public Law 106-246); Section 501 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (Public Law 112-158); the Sergei Magnitsky Rule of Law Accountability Act of 2012, Title IV of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (Public Law 112-208).

9 FAM 302.14-1(C) (U) Presidential Proclamations and Executive Orders

(CT:VISA-616; 07-03-2018)

(U) Executive Order 13606 - Blocking the Property and Suspending Entry Into the United States of Certain Person With Respect to Grave Human Rights Abuses by the Government of Iran and Syria via Information Technology; Executive Order 13608 - Prohibiting Certain Transactions With and Suspending Entry Into the United States of Foreign Sanctions Evaders With Respect to Iran and Syria; Presidential Proclamation 8693 - Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions; Presidential Proclamation 8697 of August 4, 2011 - Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Participate in Serious Human Rights and Humanitarian Law Violations and Other Abuses; Presidential Proclamation 9645 of September 24, 2017 Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.

9 FAM 302.14-2 (U) ADVERSE FOREIGN POLICY CONSEQUENCES - INA 212(a)(3)(C)

9 FAM 302.14-2(A) (U) Grounds

(CT:VISA-477; 12-13-2017)

(U) INA 212(a)(3)(C) allows the Secretary of State to exclude, under certain circumstances, any alien whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States.

9 FAM 302.14-2(B) (U) Application

9 FAM 302.14-2(B)(1) (U) Exceptions for Foreign Officials or Candidates for Government Office

(CT:VISA-272; 12-20-2016)

(U) An alien who is an official of a foreign government or purported government, or who is a candidate for election to a foreign government office, may not be excluded under INA 212(a)(3)(C) solely because of any past, current, or expected beliefs, statements, or associations which would be lawful in the United States. In such cases, exclusion must be based on factors related to the aliens entry or proposed activities which go beyond the applicants beliefs, statements, and associations, and which have the requisite potential for serious adverse foreign policy consequences.

9 FAM 302.14-2(B)(2) (U) Exceptions for Other Aliens

(CT:VISA-272; 12-20-2016)

(U) Aliens other than foreign government officials or candidates for government office may not be excluded because of their past, current, or expected beliefs, statements, or associations, if lawful in the United States, unless the Secretary of State personally determines that the aliens admission would compromise a compelling U.S. foreign policy interest. It should be noted that compromise a compelling United States foreign policy interest is a significantly higher standard than the have potentially serious adverse foreign policy consequences standard generally required for a finding of inadmissibility under INA 212(a)(3)(C).

9 FAM 302.14-2(B)(3) (U) Reports to Congress

(CT:VISA-272; 12-20-2016)

(U) You should be aware that INA 212(a)(3)(C)(iv) added to the law a permanent requirement that the Secretary of State report, on a timely basis, to the Judiciary Committees of the House and Senate, the House Foreign Affairs Committee, and the Senate Foreign Relations Committee every denial of a visa on the grounds of foreign policy. The Department has interpreted the words on a timely basis to mean within thirty days following the denial. Accordingly, whenever we render an opinion that the entry or proposed activities of an alien would have potentially serious adverse foreign policy consequences within the meaning of section INA 212(a)(3)(C), you will be required to report promptly to the Department the precise date on which the aliens application was denied for that reason.

9 FAM 302.14-2(C) Unavailable

9 FAM 302.14-2(C)(1) Unavailable

(CT:VISA-477; 12-13-2017)

Unavailable

9 FAM 302.14-2(C)(2) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-2(D) (U) Waiver

9 FAM 302.14-2(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available but inadmissibility under INA 212(a)(3)(C) applies only to current circumstances.

9 FAM 302.14-2(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available but inadmissibility under INA 212(a)(3)(C) applies only to current circumstances.

9 FAM 302.14-2(E) Unavailable

9 FAM 302.14-2(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-2(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 fam 302.14-3 (U) Suspension of Entry by President - INA 212(f)

9 FAM 302.14-3(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) INA 212(f) provides that whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he deems necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

9 FAM 302.14-3(B) (U) Application

9 FAM 302.14-3(B)(1) (U) In General

(CT:VISA-477; 12-13-2017)

a. (U) Basis for Suspension of Entry: INA 212(f) authorizes the President to suspend entry into the United States of any aliens or any class of aliens or to "impose on the entry of aliens any restrictions he may deem appropriate" for such period as he deems necessary upon determining that their entry would be detrimental to the interests of the United States.

b. (U) Presidential Proclamations: The President exercises this authority by issuing a Presidential Proclamation ("PP") barring certain aliens or a class of aliens ineligible for entry into the United States or imposing appropriate restrictions on their entry.

(1) (U) A Presidential Proclamation typically grants the Secretary of State authority to identify individuals covered by the presidential proclamation and waive its application for foreign policy or other national interests.

(2) (U) Some Presidential Proclamations bar entry based on affiliation, such as:

(a) (U) PP 7062 (suspends the entry of members of the military junta in Sierra Leone and members of their families); and

(b) (U) PP 6958 (suspends the entry of members of the Government of Sudan, officials of that Government, and members of the Sudanese armed forces).

(3) (U) Other Presidential Proclamations suspend the entry of persons based on objectionable conduct. Examples include:

(a) (U) PP 7524 (suspends the entry of persons responsible for actions that threaten Zimbabwes democratic institutions and transition to multi-party democracy); and

(b) (U) PP 7750 (suspends the entry of certain persons engaged in or benefitting from corruption).

(4) (U) A complete list of Presidential Proclamations may be found on the Consular Affairs Website, CA Web.

c. (U) INA 212(f) and Other Statutory Inadmissibilities: Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies. For example, an alien believed to have engaged in public corruption covered by PP 7750, but who also has one or more criminal convictions making him ineligible under INA 212(a)(2), would be denied under the latter authority.

9 FAM 302.14-3(B)(2) Unavailable

(CT:VISA-272; 12-20-2016)

a. Unavailable

b. Unavailable

9 FAM 302.14-3(B)(3) (U) Presidential Proclamation 8697

(CT:VISA-477; 12-13-2017)

a. (U) In General:

(1) (U) On August 4, 2011, President Obama issued Presidential Proclamation 8697 on the Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Participate in Serious Human Rights and Humanitarian Law Violations and Other Abuses. See the full text at PP 8697. Again, please see CA Web for a list of all Presidential Proclamations.

(2) (U) PP 8697 generally covers the following classes of persons:

(a) (U) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, widespread or systematic violence against any civilian population based in whole or in part on race, color, descent, sex, disability, membership in an indigenous group, language, religion, political opinion, national origin, ethnicity, membership in a particular social group, birth, sexual orientation, or gender identity, or who attempted or conspired to do so. (See 9 FAM 302.14-3(B)(3) paragraph b); or

(b) (U) Any alien who planned, ordered, assisted, aided and abetted, committed or otherwise participated in, including through command responsibility, war crimes, crimes against humanity, or other serious violations of human rights, or who attempted or conspired to do so. (See 9 FAM 302.14-3(B)(3) paragraph b below.)

(3) (U) PP 8697 does not apply to an alien if the Secretary determines that the individual's particular entry either would not harm U.S. foreign relations interests or would be in the interests of the United States. This latter determination is to be made in consultation with the Secretary of Homeland Security on matters related to admissibility or inadmissibility within the authority of the Secretary of Homeland Security.

b. (U) Definitions: The definitions below were developed to help you determine whether an alien's conduct falls within the scope of PP 8697; they do not represent a definitive state of the Department's views on these issued under international or domestic law.

(1) (U) Widespread or Systematic Violence:

(a) (U) Widespread violence can be characterized by its extensive nature. Factors in assessing whether violence was widespread could include the number of victims or locations, and the number, type, or frequency of violent incidents involved.

(b) (U) Systematic violence can be characterized by a pattern, policy, or plan, such as an organized nature to the violence in question.

(U) Note: "Widespread or Systematic Violence," like "Other Serious Violations of Human Rights" (see paragraph (2)(c) below), does not require contextual determinations regarding the existence of an "armed conflict" or "state or organizational policies." To the extent that certain acts meet this definition, it is not necessary to determine whether they also or independently meet the definitions in section (2)(a) or (2)(b) below.

(2) (U) War Crimes, Crimes Against Humanity, or Other Serious Violations of Human Rights:

(a) (U) The term war crimes refers to serious violations of the laws of war committed by, or conspired, attempted, or ordered to be committed by, any person (civilian or military). War crimes only occur in the context of armed conflict. Internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature generally are not considered armed conflicts in this context. The following acts may be examples of war crimes (see also, the War Crimes Act, 18 U.S.C. 2441):

(i) (U) Grave breaches of the Geneva Conventions of August 12, 1949, which include any of the following acts against persons (e.g., civilians, detainees, wounded combatants) or property protected under the Geneva Conventions:

(A) (U) Willful killing;

(B) (U) Torture or inhuman treatment, including biological experiments;

(D) (U) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

(E) (U) Compelling a prisoner of war or other protected person to serve in the forces of the hostile Power;

(F) (U) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(G) (U) Unlawful deportation or transfer or unlawful confinement of a protected person;

(F) (U) Taking of hostages.

(ii) (U) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided that these buildings are not military objectives;

(iii) (U) Intentionally directing attacks against the civilian population as such or against individual civilians or civilian objects (objects that are not military objectives);

(iv) (U) Rape, sexual assault, sexual slavery, or sexual abuse;

(v) (U) Making use of poison, such as poisoning wells or streams;

(vi) (U) Maltreatment of dead bodies;

(vii) (U) Purposeless destruction, such as firing on civilian localities that are undefended and without military significance;

(viii) (U) Misuse of a flag of truce (e.g., a person using a flag of truce to feign an intention to surrender when there is no such intention);

(ix) (U) Misuse of the Red Cross emblem (e.g., a person using a red cross to attempt to shield a building from attack when the building is actually being used for military purposes and may lawfully be attacked);

(x) (U) Pillage (i.e., a commander forcibly taking an enemy civilians private property for private or personal use without any military necessity nor other proper legal authorization);

(xi) (U) Summarily executing detainees without trial;

(xii) (U) Declaring that no quarter be given (i.e., a commander directing his forces not to accept any surrender from the enemy and instead to execute summarily captured enemy persons who have surrendered);

(xiii) (U) Using measures of intimidation or of terrorism against the civilian population;

(xiv) (U) Intentionally directing attacks against non-combatant personnel, installations or vehicles used in humanitarian assistance or in peacekeeping missions;

(xv) (U) Subjecting persons who are in the power of an adverse party to physical mutilation or scientific experiments;

(xvi) (U) Using human shields;

(xvii) (U) Ordering the displacement of the civilian population unless the security of the civilians involved or imperative military reasons so demand;

(xviii) (U) Conscripting or enlisting children under the age of fifteen years into the national armed forces or armed groups or using them to participate actively in hostilities.

(b) (U) "Crimes against humanity" are generally characterized by certain acts that are committed as part of a widespread and systematic attack, as defined in (a) above, directed against a civilian population, where the attack is pursuant to or in furtherance of a state or organizational policy to commit such an attack.

(i) (U) The act itself must be committed with knowledge of the larger attack (e.g., the act must be committed under circumstances in which the perpetrator knew of the attack and was aware of the connection between his or her act and the attack).

(ii) (U) The attack need not amount to, or occur in the context of, an armed conflict.

(iii) (U) The types of acts that can amount to crimes against humanity when committed in the circumstances described above in section 2 and 2(a) include:

(A) (U) Murder;

(B) (U) Extermination;

(D) (U) Deportation or forcible transfer of a civilian population;

(E) (U) Imprisonment or other severe deprivation of physical liberty;

(F) (U) Torture;

(G) (U) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(H) (U) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender grounds;

(I) (U) Enforced disappearances of persons;

(J) (U) Apartheid;

(K) (U) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

(c) (U) "Other Serious Violations of Human Rights" do not need to be committed within the context of a widespread and systematic attack or an armed conflict. They include:

(i) (U) acts of slavery, the slave trade, and genocide regardless of who commits the acts; and

(ii) (U) the following and similar types of acts when committed under color of authority whether at a national, state, provincial, local or municipal level of government:

(A) (U) Torture or cruel, inhuman or degrading treatment or punishment;

(B) (U) Prolonged arbitrary detention;

(D) (U) Arbitrary or extrajudicial killings and other flagrant denial of the right to life, liberty or security of a person;

(E) (U) Rape, enforced prostitution, forced pregnancy, forced abortion, enforced sterilization, or any other form of sexual violence of comparable gravity;

(G) (U) Abuse of prisoners and detainees;

(H) (U) Arbitrary imprisonment for political motives;

(I) (U) Forced labor;

(J) (U) Egregious suppression, meaning "to put down [by force or otherwise], to subdue, quell or crush," of a persons right to freedom of opinion, belief, expression or association (suppression here covers actions that are more extreme and serious rather than any action that somehow interferes with someone's rights);

(K) (U) Unlawful recruitment into or use of children in armed forces or armed groups;

(L) (U) Apartheid or systematic racial discrimination;

(M) (U) Systematic discrimination against or persecution of members of any identifiable group based in whole or in part on race, color, descent, sex, disability, membership in an indigenous group, language, religion, political opinion, national origin, ethnicity, membership in a particular social group, birth or sexual orientation or gender identity.

(U) Discrimination based on "birth," as used here, refers to discrimination against someone because he or she was born out of wedlock, born of stateless parents, was adopted, or is part of a family including such persons. It also could involve discrimination because of descent, especially on the basis of caste and analogous systems of inherited status.

(d) (U) Command responsibility can refer to the responsibility of a military commander, a person effectively acting as a military commander, or other superiors that exercise effective control over their subordinates for any of the acts referred to above committed by a subordinate. Command responsibility exists in circumstances in which the commander knew or should have known that the subordinate was about to commit such acts or was in the process of committing or had committed such acts, and the commander failed to take the necessary and reasonable measures to prevent such acts, to halt such acts, and/or to punish the perpetrators. The commander need not have exercised formal supervisory authority; however, he or she must have exercised effective control over the subordinate, including the power to prevent and punish the prohibited acts of persons under his or her control, in order to be held responsible on this basis.

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f. (U) Revocations:

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j. (U) Confidentiality Under INA 222(f):

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9 FAM 302.14-3(C) Unavailable

(CT:VISA-634; 07-13-2018)

a. (U) In General:

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9 FAM 302.14-3(D) (U) Waivers

9 FAM 302.14-3(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for immigrants under INA 212(f).

9 FAM 302.14-3(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for nonimmigrants inadmissible under INA 212(f).

9 FAM 302.14-3(E) Unavailable

9 FAM 302.14-3(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-3(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 FAM 302.14-4 (U) INDIVIDUALS Who Aided and Abetted Colombian Insurgent and Paramilitary Groups - Section 3205 of Public Law 106-246

9 FAM 302.14-4(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) Section 3205 of Public Law 106-246 provides that any alien who provided direct or indirect support to the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), or the United Colombian Self Defense Organization (AUC) is ineligible for a visa.

9 FAM 302.14-4(B) (U) Application

(CT:VISA-272; 12-20-2016)

(U) [RESERVED]

9 FAM 302.14-4(C) (U) Advisory Opinions

(CT:VISA-272; 12-20-2016)

(U) An AO is not required for a potential Section 3205 ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.14-4(D) (U) Waiver

9 FAM 302.14-4(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for immigrant visa applicants inadmissible under Section 3205.

9 FAM 302.14-4(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-477; 12-13-2017)

a. (U) Medical Necessity: Section 3025 may be waived for nonimmigrants if the Secretary of State finds, on a case-by-case basis, that the entry into the United States of a person who would otherwise be inadmissible is necessary for medical reasons.

b. (U) Criminal Prosecution or Investigations: Section 3025 may be waived for a nonimmigrant to permit the prosecution of the individual or when the individual has cooperated fully with the investigation of crimes committed by individuals associated with the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), or the United Colombian Self Defense Organization (AUC).

c. (U) National Interest: The President may waive the limitation for a nonimmigrant if he determines that the waiver is in the national interest.

9 FAM 302.14-4(E) Unavailable

9 FAM 302.14-4(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-4(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 FAM 302.14-5 (U) Individuals Involved in Confiscation of Property of a U.S. National - Section 401 of Libertad ACT

9 FAM 302.14-5(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) Section 401 of Public Law 104-114 of the Cuban Liberty and Democratic Solidarity (Libertad) Act (hereinafter the Libertad Act) renders ineligible an individual who:

(1) (U) has confiscated property a claim to which is owned by a U.S. national;

(2) (U) has directed or overseen the confiscation of property a claim to which is owned by a U.S. national;

(3) (U) has converted, for personal gain, confiscated property a claim to which is owned by a U.S. national;

(4) (U) has trafficked in confiscated property a claim to which is owned by a U.S. national;

(5) (U) is a corporate officer, principal, or shareholder with a controlling interest of an entity which has been involved in the confiscation of property or trafficking in confiscated property, a claim to which is owned by a U.S. national; or

(6) (U) is a spouse, minor child, or agent of a person described in (a) through (e) above.

9 FAM 302.14-5(B) (U) Application

9 FAM 302.14-5(B)(1) (U) In General

(CT:VISA-272; 12-20-2016)

(U) Title IV, Section 401 of Public Law 104-114 of the Cuban Liberty and Democratic Solidarity (Libertad) Act (hereinafter the Libertad Act) makes excludable from the United States, upon determination of the Secretary of State, either through denial of a visa or exclusion at the port of entry, any alien who has confiscated property of United States nationals or who traffics in such property after the enactment date of the (Helms-Burton) law, March 12, 1996. The purpose of this section of the Libertad Act was to discourage foreign investment in expropriated properties in Cuba, the claims to which are owned by U.S. nationals. In addition to any one individual who meets the definition of trafficking or confiscation (see section 401(b) of the Libertad Act), this inadmissibility applies to a corporate officer, principal, or controlling shareholder in a company or entity that has been involved in such confiscations or trafficking or, is a spouse, minor child, or agent of any person who has been involved in such trafficking or confiscation.

9 FAM 302.14-5(B)(2) (U) Definitions

(CT:VISA-272; 12-20-2016)

(U) Unless otherwise defined herein, the terms associated with section 401 of the Libertad Act are defined as they appear in the Libertad Act (e.g., confiscate or trafficking) or in the Immigration and Nationality Act (e.g., minor child):

(1) (U) Agent means a person who acts on behalf of a corporate officer, principal, or shareholder with a controlling interest to carry out or facilitate acts or policies that result in a determination under section 401(a) of the Libertad Act;

(2) (U) Corporate Officer means the president; chief executive officer; principal financial officer; principal accounting officer (or, if there is no accounting officer, the controller); any vice president of the entity in the charge of a principal business unit, division or function (such as sales, administration or finance); or any other officer or person who performs policy-making functions for the entity. Corporate officers of a parent or subsidiary of the entity may be deemed corporate officers of the entity if they perform policy-making functions for the entity;

(3) (U) "Principal means:

(a) (U) When the entity is a general partnership, any general partner and any officer or employee of the general partnership who performs a policy-making function for the partnership;

(b) (U) When the entity is a limited partnership, any general partner and any officer or employee of a general partner of the limited partnership who performs a policy-making function for the limited partnership;

(c) (U) When the entity is a trust, any trustee and any officer or employee of the trustee who performs policy-making for the trust; and

(d) (U) Any other person who performs similar policy-making functions for an entity;

(4) (U) Shareholder with a controlling interest means a person possessing the power, directly or indirectly, to direct or cause the direction of the management and policies of the entity through the ownership of voting securities; and

(5) (U) Transactions and uses of property incident to lawful travel in Cuba are such incidental transactions and uses of confiscated property as are necessary to the conduct of lawful travel in Cuba (see 9 FAM 302.11-5).

9 FAM 302.14-5(B)(3) (U) Determination of Inadmissibility Under Libertad Act

(CT:VISA-896; 07-18-2019)

a. (U) The Secretary of State has delegated authority to the Assistant Secretary of State for Western Hemisphere Affairs to make determinations of excludability and visa ineligibility under section 401(a) of the Libertad Act. The Office of the Coordinator for Cuban Affairs in the Bureau of Western Hemisphere Affairs (WHA/CCA) at the Department is the central point of contact for all inquiries about implementation of Title IV of the Libertad Act. Determinations of ineligibility and inadmissibility under Title IV will be made when facts or circumstances exist that would lead the Department reasonably to conclude that a person has engaged in confiscation or trafficking after March 12, 1996.

b. (U) These determinations are made by the Department (WHA) and not by posts. The CLASS lookout system code for such refusals is 401, with the annotation refuse Helms-Burton appearing in the comment field of the CLASS entry. If, while processing a visa application, information comes to light that suggests an applicant may be involved in confiscation or trafficking, or post is unsure whether the 401 hit relates to the particular applicant, posts should forward the information to the Department, slugged to Bureau of Western Hemisphere Affairs/Office of Cuban Affairs (WHA/CCA), and request a Helms-Burton advisory opinion (see 9 FAM 302.14-5(C) below for styling of such request). This could occur, for example, if a new spouse had married an individual known to be involved in trafficking, but the new spouse had not yet been entered into CLASS; or, an individual recently had become an agent for a trafficking entity, but had not yet been entered into CLASS as such. You should note that it is not sufficient in itself for a determination under section 401(a) that a person has merely had business dealings with a person for whom a determination is made under section 401(a).

c. (U) Any section 401(a) determination must be entered in CLASS. Entry into CLASS is the exclusive means by which you and the United States Citizenship and Immigration Services (USCIS) will verify that the alien has been determined to be excludable under section 401 of the Libertad Act. If the determination of inadmissibility has already been made, there is no need to refer the case to the Department.

9 FAM 302.14-5(B)(4) (U) Notification of Finding of Section 401(a) Ineligibility or Excludability Under Libertad Act

(CT:VISA-477; 12-13-2017)

a. (U) In General: An alien who may be the subject of a determination under section 401(a) of the Libertad Act will be notified by registered mail from the Office of the Coordinator for Cuban Affairs (CCA). This notification will inform the alien that his or her name will be entered into the Department visa lookout system and the Department of Homeland Security (DHS) port-of-entry screening system, and that he or she will be denied a visa upon application or have his or her visa revoked 45 days after the date of the notification letter.

b. (U) Contesting a Finding Under Section 401(a) of the Libertad Act: After receiving notification from the Department (WHA/CCA), an applicant may, at any time, submit information to WHA/CCA to attempt to show that he or she is not part of a confiscation or trafficking arrangement. If such information leads the Department to reasonably conclude that the applicant or company has not, or is no longer, engaged in confiscation or trafficking, that the original determination was in error, or that an exception applies under section 401(b)(2)(B) of the Libertad Act, the Department may review and/or reverse its determination. If such information comes forward within 45 days of the original notification of the exclusion, and the Department determines that the applicant should not be inadmissible, the applicants name will not be entered into the lookout system. If the lookout entry has been made, and the Department reverses the decision, the Department will notify you and USCIS through appropriate channels of the reversal of the original decision and delete the lookout entry from the system.

c. (U) The Department may review a determination made under Title IV of the Libertad Act at any time, as appropriate, based on receipt of information that may lead to any of the above findings.

d. (U) Exemptions from a Finding Under Section 401(a) of the Libertad Act:

(1) (U) The Department (WHA) may grant an exemption from visa ineligibility for diplomatic and consular personnel of foreign governments and representatives to and officials of international organizations. An applicant may also request from the Department an exemption for medical reasons or for purposes of litigation of an action under Title III of the Libertad Act to the extent permitted under section 401(c) of the Libertad Act. The Department may impose appropriate conditions on any exemption granted.

(2) (U) Although applicants are to request exemptions from the Department, it is probable that they will submit such requests at consular posts. If the case is time-sensitive (i.e., medical emergencies, travel by foreign officials, imminent court appearances), you should submit the request by immediate cable to the Department in the same format as an advisory opinion request (see 9 FAM 302.14-5(C) below). In all other cases, you will provide the applicant with the following address to which he or she is to direct the request:

Office of the Coordinator for Cuban Affairs,

HST Room 3234

Department of State, Washington, D.C. 20520

(202) 647-7488

(202) 647-7050 (Fax)

Attn: Consular Unit

e. (U) Effect of Divesting from Trafficking Arrangement: Divesting from a trafficking arrangement averts the inadmissibility, as specifically excluded from the definition of trafficking is the sale or abandonment of confiscated property in Cuba for purposes of disengaging from Cuba. If the applicant can prove to the Department that he or she divested the property for the purpose of eliminating ties with Cuba, then the section 401 ineligibility will be removed.

9 FAM 302.14-5(B)(5) (U) Revocation of Previously Issued Visa Because of Section 401 Ineligibility

(CT:VISA-272; 12-20-2016)

(U) Forty-five (45) days after an alien has received the notification letter, the aliens visa will be revoked in accordance with INA 221(i) (see 9 FAM 302.14-5(B)(4) above) under the consular officers general authority to revoke visas (assuming the alien has a visa and has not submitted adequate rebuttal evidence within the 45-day period). However, if you have reason to believe the alien in question is in the United States, you must notify the Department, WHA/CCA, and CA/VO/L/A.

9 FAM 302.14-5(B)(6) (U) Other Inquiries by Alien Regarding Section 401 Ineligibility

(CT:VISA-272; 12-20-2016)

(U) Any inquiry received by you outside the context of a visa application, as may be likely from aliens who have been notified of their inadmissibility or who are concerned that the Department is building a case against them, should be referred to the Office of the Coordinator for Cuban Affairs (see 9 FAM 302.14-5(B)(4) above).

9 FAM 302.14-5(C) (U) Advisory Opinions

9 FAM 302.14-5(C)(1) (U) In General

(CT:VISA-272; 12-20-2016)

(U) If, after encountering a 401 CLASS hit and re-interviewing the applicant, you are unable to determine whether the hit relates to that particular applicant, you must refuse the application under section 221(g) and submit a Helms-Burton advisory opinion request WHA/CCA.

9 FAM 302.14-5(C)(2) (U) Preparing Cable

(CT:VISA-272; 12-20-2016)

(U) The cable should contain the following key elements:

Subject line: Helms-Burton Advisory Opinion Request
TAGS: REL, CVIS, CU, Appropriate host country TAG
Caption/slug line: Dept. for WHA/CCA (NOTE: Do not slug for CA/VO.)

The advisory opinion request should provide WHA/CCA with the exact hit, as it appears in CLASS, the full name, date and place of birth of applicant, his or her employer and position, other relevant biographic information on the applicant, and any other relevant information.

9 FAM 302.14-5(D) (U) Waiver

9 FAM 302.14-5(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for immigrant visa applicants inadmissible under Section 401.

9 FAM 302.14-5(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) Section 401 may be waived for nonimmigrants where the Secretary of State finds, on a case by case basis, that entry into the United States of the individual who would otherwise be inadmissible is necessary for medical reasons or for purposes of litigation under the Cuban Libertad Act.

9 FAM 302.14-5(E) Unavailable

9 FAM 302.14-5(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-5(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 FAM 302.14-6 (U) Specially designated nationals - PP 8693

9 FAM 302.14-6(A) (U) Grounds

(CT:VISA-797; 05-16-2019)

Unavailable

9 FAM 302.14-6(B) (U) Application

9 FAM 302.14-6(B)(1) (U) Scope

(CT:VISA-272; 12-20-2016)

(U) The information below addresses certain non-statutory visa sanctions, but is not intended to be a comprehensive list of all visa-related Presidential Proclamations, Executive Orders, and other non-statutory visa sanctions.

9 FAM 302.14-6(B)(2) (U) Presidential Proclamation 8693

(CT:VISA-896; 07-18-2019)

a. (U) Role of the Department of Treasury: IEEPA sanctions implemented by the EOs are enforced by the Department of the Treasury's Office of Foreign Assets Control (OFAC). Designated individuals and organizations are listed on OFAC's Specially Designated Nationals (SDN) list.

b. Unavailable

(1) Unavailable

(2) Unavailable

(3) Unavailable

(4) Unavailable

(5) Unavailable

(6) Unavailable

c. Unavailable

d. Unavailable

9 FAM 302.14-6(B)(3) (U) Executive Order 13606

(CT:VISA-797; 05-16-2019)

a. Unavailable

b. (U) Criteria for Sanctions: The EO imposes sanctions, including suspension of immigrant and nonimmigrant entry into the United States, of aliens who are either listed in the Annex to the EO, or designated subsequently under the EO. Any alien who is later designated must meet the following criteria, as laid out in E.O. 13606:

(1) Unavailable

(2) Unavailable

(3) Unavailable

(4) Unavailable

c. (U) Designating Individuals and Entering CLASS Records:

(1) Unavailable

(2) Unavailable

(3) Unavailable

(4) Unavailable

d. (U) Confidentiality Under INA 222(f):

(1) Unavailable

(2) (U) See 9 FAM 603.1 for further information on INA 222(f).

9 FAM 302.14-6(B)(4) (U) Executive Order 13608 Prohibiting Certain Transactions With and Suspending Entry Into the United States of Foreign Sanctions Evaders with Respect to Iran and Syria

(CT:VISA-634; 07-13-2018)

a. (U) Background: On April 30, 2012, President Obama issued Executive Order 13608 on Foreign Sanctions Evaders ("FSE EO"), under the International Emergency Economic Powers Act, which targets foreign individuals and entities that have violated, attempted to violate, conspired to violate, or caused a violation of U.S. sanctions against Iran or Syria, or that have facilitated deceptive transactions on behalf of Iran.

b. (U) General Consequences of Designation:

(1) (U) Designees are generally cut off from doing business with U.S. companies and individuals. The FSE EO prohibits all transactions or dealings involving such person in or related to (i) any goods, services, or technology in or intended for the United States, or (ii) any goods, services or technology provided by or to United States persons, wherever located.

(2) (U) Designees are generally restricted from entering the United States, either for immigrant or nonimmigrant purposes. See more on the specific criteria set forth in 9 FAM 302.14-6(B)(4) paragraph c below. Restriction of entry must not apply where entry of the person into the United States would not be contrary to the interests of the United States, as determined by the Secretary of State.

c. (U) Criteria for Restricting Immigrant and Nonimmigrant Entry Into the United States: The FSE EO restricts immigrant and nonimmigrant entry into the United States, of aliens who meet the following criteria, as listed in E.O. 13608:

(1) (U) Has violated, attempted to violate, conspired to violate, or caused a violation of any license, order, regulation, or prohibition contained in, or issued pursuant to any Executive Order ("EO") related to the national emergencies declared in E.O. 12957 March 15, 1995, or in E.O. 13338 of May 11, 2004, as modified in scope in subsequent EOs;

(2) (U) Has violated, attempted to violate, conspired to violate, or caused a violation of any license, order, regulation, or prohibition to the extent such conduct relates to property and interests in property of any person subject to U.S. sanctions concerning Iran or Syria, E.O. 13382 of June 28, 2005, any E.O. subsequent to E.O. 13382 of June 28, 2005 that relates to the national emergency declared in E.O. 12938 of November 14, 1994, or any E.O. relating to the national emergency declared in E.O. 13224 of September 23, 2001;

(3) (U) Has facilitated deceptive transactions for or on behalf of any person subject to U.S. sanctions concerning Iran or Syria; or

(4) (U) Is owned or controlled by, or is acting or purporting to act for or on behalf of, directly or indirectly, any person determined to meet the criteria set forth above.

9 FAM 302.14-6(C) Unavailable

9 FAM 302.14-6(C)(1) (U) PP 8693

(CT:VISA-896; 07-18-2019)

a. Unavailable

(1) Unavailable

(2) Unavailable

b. Unavailable

c. Unavailable

d. Unavailable

e. Unavailable

f. Unavailable

g. Unavailable

(1) Unavailable

(2) Unavailable

(3) Unavailable

h. Unavailable

i. Unavailable

9 FAM 302.14-6(D) (U) Waiver

9 FAM 302.14-6(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for immigrant visa applicants.

9 FAM 302.14-6(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for nonimmigrant visa applicants.

9 FAM 302.14-6(E) Unavailable

9 FAM 302.14-6(E)(1) Unavailable

(CT:VISA-896; 07-18-2019)

a. Unavailable b. Unavailable

9 FAM 302.14-6(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

a. Unavailable b. Unavailable

9 FAM 302.14-7 (U) Iran Threat Reduction and syria human rights act - Section 501 of Public Law 112-158

9 FAM 302.14-7(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) In General: Section 501 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (Public Law 112-158) makes ineligible for a visa or admission any alien who is a citizen of Iran who seeks to enter the United States to participate in coursework at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))) to prepare the alien for a career in the energy sector of Iran or in nuclear science or nuclear engineering or a related field in Iran.

9 FAM 302.14-7(B) (U) Application

9 FAM 302.14-7(B)(1) (U) Effective Date

(CT:VISA-272; 12-20-2016)

(U) Section 501 applies to applications for new or renewed visas filed on or after August 10, 2012. Visa applications filed before August 10, 2012 are not subject to Section 501.

9 FAM 302.14-7(B)(2) (U) Common Visa Classes

(CT:VISA-272; 12-20-2016)

(U) You are most likely to encounter potential ineligibilities under Section 501 with aliens applying for an F visa. However, you may also encounter aliens applying for other visa classifications including, but not limited to, B, H3, H4, J, and M.

9 FAM 302.14-7(B)(3) (U) Determining Participation in Coursework and Intent to Return to Iran

(CT:VISA-477; 12-13-2017)

(U) A citizen of Iran is ineligible for a visa or admission if he or she meets either of the following conditions:

(1) Unavailable

(2) (U) Intends to participate in coursework at an institution of higher education in the United States in any field related to nuclear science or nuclear engineering or a related field in Iran. (Any case relating to potential coursework in fields related to nuclear science or nuclear engineering or a related field should be processed pursuant to 9 FAM 304.2-5.)

9 FAM 302.14-7(B)(4) (U) Energy Sector Definition

(CT:VISA-272; 12-20-2016)

(U) For purposes of Section 501, the term energy sector is defined to include activities to develop petroleum or natural gas resources, or nuclear power in Iran, but does not include alternative energy resources, such as electric, solar, or wind power.

9 FAM 302.14-7(B)(5) (U) Refusals

(CT:VISA-896; 07-18-2019)

(U) If you determine that the alien is ineligible as described in 9 FAM 302.14-7(B)(3) above you must deny the applicant under refusal code "ITRA. Applicants who may be ineligible under 9 FAM 302.14-7(B)(3) above should be processed per 9 FAM 302.5 and 9 FAM 304.2-5.

9 FAM 302.14-7(B)(6) (U) Point of Contact

(CT:VISA-272; 12-20-2016)

(U) Questions, including those related to fields of study that may render an applicant ineligible, can be directed to the Iran visa specialists or point of contact (POC) CA/VO/SAC as found on the "Who's Who in CA" Intranet page.

9 FAM 302.14-7(C) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-7(D) (U) Waiver

9 FAM 302.14-7(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for immigrant visa applicants inadmissible under Section 501.

9 FAM 302.14-7(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for nonimmigrant visa applicants inadmissible under Section 501.

9 FAM 302.14-7(E) Unavailable

9 FAM 302.14-7(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-7(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 FAM 302.14-8 (U) Sergei Magnitsky Rule of Law Accountability Act of 2012 - Section 405 of Public Law 112-208

9 FAM 302.14-8(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) The Sergei Magnitsky Rule of Law Accountability Act of 2012, Public Law 112-208, Title IV, ("the Act") requires that the President provide to Congress and publish in the Federal Register a list of persons involved in abuses in the Magnitsky case, as well as persons involved in gross human rights violations against whistleblowers or advocates for human rights or democratic freedoms in Russia (Section 404); that persons on the list will be ineligible to hold or obtain visas to enter the United States (Section 405); and that persons on the list will be subject to financial sanctions (Section 406).

9 FAM 302.14-8(B) (U) Application

9 FAM 302.14-8(B)(1) (U) Scope

(CT:VISA-272; 12-20-2016)

(U) This guidance addresses the visa sanctions portion of the Act only.

9 FAM 302.14-8(B)(2) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-8(B)(3) (U) Presidential Delegation of Authorities

(CT:VISA-272; 12-20-2016)

a. (U) The President has delegated the functions and authorities set forth in Public Law 112-208, sections 404 and 406, to the Secretary of State and the Secretary of the Treasury. In accordance with the Act and the delegation of authorities, no later than 120 days after the date of the enactment of the Act, the Secretary of State and Secretary of Treasury were required to provide the appropriate congressional committees with a list of persons determined to meet the criteria set forth in Section 404(a) of the Act. The submission was completed on April 12th, 2013.

b. Unavailable

c. Unavailable

9 FAM 302.14-8(C) Unavailable

(CT:VISA-272; 12-20-2016)

a. Unavailable

(1) Unavailable

(2) Unavailable

b. Unavailable

c. Unavailable

d. Unavailable

e. Unavailable

f. Unavailable

g. Unavailable

9 FAM 302.14-8(D) (U) Waiver

9 FAM 302.14-8(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) No waiver is available for immigrant visa applicants inadmissible under Magnitsky.

9 FAM 302.14-8(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

a. (U) In General: The Act allows the Secretary of State to authorize a waiver of the visa ineligibilities for nonimmigrants to meet U.S. obligations under the U.N. Headquarters Agreement or other international obligations, or in cases in the national security interests of the United States.

b. (U) Congressional Notification: Note that prior to granting such a waiver, the Secretary is required to provide the appropriate congressional committees with notice and a justification for the waiver. If the waiver is being granted notification must be made no later than 15 days prior to granting the waiver. It is therefore imperative that you notify your VO/SAC analyst as soon as possible if you believe there are applicable grounds on which to seek a waiver.

9 FAM 302.14-8(E) Unavailable

9 FAM 302.14-8(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-8(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 FAM 302.14-9 (U) Participation in Political Killings - Section 616

of Public Law 105-277

9 FAM 302.14-9(A) (U) Grounds

(CT:VISA-477; 12-13-2017)

(U) Section 616 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277) prohibits the issuance of a visa to any person who:

(1) (U) has been credibly alleged to have ordered, carried out, or materially assisted in the extrajudicial and political killings of Antoine Izmery, Guy Malary, Father Jean-Marie Vincent, Pastor Antoine Leroy Jacques Fleurival, Mireille Durocher Bertin, Eugene Baillergeau, Michelange Hermann, Max Mayard, Romulus Dumarsais, Claude Yvez Marie, Mario Beaubrun, Leslie Grimar, Joseph Chilove, Michel Gonzalez, and Jean-Hubert Feuille;

(2) (U) has been included in the list presented to former President Jean-Bertrand Aristide by former National Security Council Adviser Anthony Lake in December 1995, and acted upon by President Rene Preval;

(3) (U) was sought for an interview by the Federal Bureau of Investigation as part of its inquiry into the March 28, 1995, murder of Mireille Durocher Bertin and Eugene Baillergeau, Jr., and was credibly alleged to have ordered, carried out, or materially assisted in those murders, per a June 28, 1995, letter to the then minister of Justice of the Government of Haiti, Jean-Joseph Erume;

(4) (U) was a member of the Haitian High Command during the period 1991 through 1994, and has been credibly alleged to have planned, ordered, or participated with members of the Haitian Armed Forces in:

(a) (U) The September 1991 coup against any person who was a duly elected government official of Haiti (or a member of the family of such official), or

(b) (U) The murders of thousands of Haitians during the period 1991 through 1994; or

(5) (U) has been credibly alleged to have been a member of the paramilitary organization known as FRAPH who planned, ordered, or participated in acts of violence against the Haitian people.

9 FAM 302.14-9(B) (U) Application

(CT:VISA-272; 12-20-2016)

(U) Section 616 will not apply if the Secretary of State finds, on a case-by-case basis, that the entry into the United States of a person who would otherwise be excluded under this section is necessary for medical reasons or such person has cooperated fully with the investigation of these political murders. If the Secretary of State exempts any such person, the Secretary will notify the appropriate congressional committees in writing.

9 FAM 302.14-9(C) (U)Advisory Opinions

(CT:VISA-272; 12-20-2016)

(U) An AO is not required for a potential Section 616 ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A

9 FAM 302.14-9(D) (U)Waiver

9 FAM 302.14-9(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver available for immigrant visa applicants found inadmissible under Section 616.

9 FAM 302.14-9(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver available for nonimmigrant visa applicants found inadmissible under Section 616.

9 FAM 302.14-9(E) Unavailable

9 FAM 302.14-9(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.14-9(E)(2) Unavailable

(CT:VISA-896; 07-18-2019)

Unavailable

9 FAM 302.14-10 (U) ENHANCING VETTING CAPABILITIES AND PROCESSES FOR DETECTING ATTEMPTED ENTRY INTO THE UNITED STATES BY TERRORISTS OR OTHER PUBLIC-SAFETY THREATS - PP 9645

9 FAM 302.14-10(A) (U) Grounds

(CT:VISA-589; 05-22-2018)

(U) Presidential Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, (PP 9645) suspends the entry into the United States, as immigrants or nonimmigrants, of certain aliens who are nationals of certain countries.

9 FAM 302.14-10(B) (U) Application

9 FAM 302.14-10(B)(1) (U) Nationalities Subject to Presidential Proclamation 9645

(CT:VISA-896; 07-18-2019)

a. Unavailable

(1) (U) Nationals of Iran: The issuance of visas to nationals of Iran is suspended for the following visa categories: