( U ) N I V R E F U S A L S 9 F A M 4 0 3 . 1 0

1 30/10/2018 9 FAM (U) NIV REFUSALS. 9 FAM (U) NIV REFUSALS. (CT:VISA 609 06 25 2018). (Office of Origin: CA/VO/L/R) 9 FAM 1 (U) STATUTORY AND REGULATORY. AUTHORITIES 9 FAM 1(A) (U) Immigration and Nationality Act (CT:VISA 1 11 18 2015). (U) INA 214(b) (8 1184(b)) INA 221(g) (8 1201(g)). 9 FAM 1(B) (U) Code of Federal Regulations (CT:VISA 1 11 18 2015). (U) 22 CFR 9 FAM 2 (U) IN GENERAL. (CT:VISA 276 01 05 2017). (U) The determination of a nonimmigrant applicant's classification and eligibility to receive a visa is your statutory responsibility and may not be delegated to any other officer (except as provided in 22 CFR (b)) or to a member of the clerical staff.

2 9 FAM 2(A) (U) Visa to be Issued or Refused (CT:VISA 380 06 12 2017). a. (U) A nonimmigrant visa (NIV) must be issued or refused in all cases once an application is executed, except when the Secretary has ordered you to discontinue issuing visas under INA 243(d). See 9 FAM 3 for the definition of "making a visa application." The visa refusals must be based on legal grounds that is, on the provisions of INA 212(a), INA 212(e), INA 212(f), INA 214(b), INA 214(l), INA. 221(g), INA 222(g), or some other specific legal provision. A quasi refusal ( , P6C, P6E, etc.) may not be used as the sole ground for a refusal.

3 See 9 FAM 302 for grounds of ineligibility. See 9 FAM for a discussion of INA 243(d). b. (U) You should only make a formal finding of ineligibility in the context of a visa application or revocation of an existing visa. A hard refusal code entry should only be placed in the Consular Lookout and Support System (CLASS) if you are denying or revoking a visa. 9 FAM 2(B) (U) Grounds for Refusal 1/11. 30/10/2018. ( ) ( ) 9 FAM (U) NIV REFUSALS. 9 FAM 2(B)(1) (U) Applying Grounds for Refusals and Ineligibilities (CT:VISA 562 04 04 2018). a. (U) Establishing Eligibility for Nonimmigrant Status: (1) (U) INA 214(b) provides that every visa applicant is presumed to be an immigrant until the applicant establishes to the satisfaction of the consular officer eligibility for a nonimmigrant status under INA 101(a)(15).

4 Consular officers must make a finding that an applicant does or does not meet the eligibility requirements for the classification sought and is therefore not a nonimmigrant under INA 101(a)(15). This determination cannot be waived. (2) (U) However, INA 214(b) is not a permanent ineligibility. The fact that a visa applicant was unable to establish qualification for a nonimmigrant status at one time does not preclude such an applicant from subsequently qualifying for a visa by showing a change in circumstances. (3) (U) For more information on applying INA 214(b) see 9 FAM 2, Presumption of Immigrant Status INA 214(b).

5 B. (U) Grounds of Ineligibility: (1) (U) Grounds of Ineligibility Not Applicable to Nonimmigrants: Certain grounds of ineligibility do not apply to some nonimmigrants. For example, some nonimmigrants are exempt from the provisions of INA 212(a)(3)(D) (membership in a totalitarian party), INA 212(a)(5)(A) (labor certification requirements), INA. 212(a)(5)(B) (unqualified physicians), INA 212(a)(5)(C) (uncertified health care workers), INA 212(a)(8)(A) (ineligible for citizenship), and INA 212(a)(10)(A). (practicing polygamists). (2) (U) Grounds of Ineligibility Not Applicable to A and G Applicants: INA 102.

6 Provides broad exemptions from grounds of inadmissibility for A and G . applicants, except domestics and personal employees. Upon a basis of reciprocity, INA 212(d)(8) also provides broad exemptions for foreign government officials in transit. These are not in the nature of waivers or other discretionary acts they provide statutory immunity from ineligibility under the special provisions. INA 212(d)(8) does not provide exemption for INA 212(a)(3)(A), INA(a)(3)(B), INA(a)(3)(C), or INA(a) (7)(B). (3) (U) Recommending Waivers: For aliens found ineligible under non exempted provisions of INA 212(a), you have discretionary authority under INA 212(d)(3).

7 (A) to recommend to the Department of Homeland Security (DHS) a waiver of the specific ground of ineligibility. c. (U) Failure to Appear, Withdrawal, or Abandonment: (1) (U) Applicant Who Fails to Appear for Interview at Post: (a) (U) No Show Cases: If an applicant has failed to make a visa application as delineated in 9 FAM 3, enter as a case remark: "No Show case: Application was never made per 9 FAM 3" and delete the case from the NIV system. The case must not be refused. Deleted cases will no longer be available in post's database, but they may be found in the CCD using the Deleted NIV Applicant Full report under the Non Immigrant Visa tab in the CCD menu.

8 2/11. 30/10/2018 9 FAM (U) NIV REFUSALS. (b) (U) Executed Application Cases: If an applicant who is not eligible for interview waiver fails to appear for an interview but has met the requirements for making an application per 9 FAM 3, refuse the case under INA 221(g) with case notes explaining that the applicant met the requirements for making an application but failed to appear for an interview. (2) (U) Applicants Refused If Application Withdrawn: If an applicant withdraws a visa application while it is pending adjudication, you must refuse the case under INA 221(g) with case notes indicating why the action was taken.

9 The case must not be deleted. (3) (U) Applicants Refused If Visa Abandoned: If the case has been adjudicated (print authorized), but not printed, and the applicant subsequently abandons the application, deciding not to travel, you must refuse the case under INA 221(g). with case notes indicating why the action was taken. The case must not be deleted. (4) (U) Reactivating Cases: Please see 9 FAM 4(A) for information on reactivating cases refused under INA 221(g). 9 FAM 2(B)(2) (U) Refusals of Out of District Applicants (CT:VISA 562 04 04 2018). a. (U) 221(g) Refusals: You must adjudicate all applications based upon the applicant's circumstances rather than refusing them under INA 221(g) solely because the applicants are out of district.

10 Refusing an applicant simply because the applicant is out of district is a missed opportunity and a waste of post's and the applicant's time. b. (U) 214(b) Refusals of Out of District Applicants: (1) (U) Refusing an applicant under INA 214(b) solely for out of district reasons is not appropriate. Section 214(b) requires that the applicant demonstrate both entitlement for a specific visa classification and absence of immigrant intent (see 9 FAM 3(E)). Consular officers can still determine whether the alien qualifies for a particular visa class, and whether there is immigrant intent on the part an out of district applicant.