( U ) O V E R C O M I N G A R E F U S A L 9 F A M 3 0 6 . 2

1 30/10/2018 9 FAM (U) OVERCOMING A REFUSAL. 9 FAM (U) OVERCOMING A REFUSAL. (CT:VISA 628 07 12 2018). (Office of Origin: CA/VO/L/R) 9 FAM 1 (U) OVERVIEW. (CT:VISA 63 02 26 2016). (U) INA 291 places the burden of proof upon the applicant to establish eligibility to receive a visa. However, the applicant is entitled to have full consideration given to any evidence presented to overcome a presumption or finding of ineligibility. It is the policy of the Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa. This policy is the basis for the review of refusals at consular offices and by the Department. With regard to cases involving classified information, the cooperation accorded the applicant must be consistent with security considerations, within the reasonable, non arbitrary, exercise of discretion in the subjective judgments required under INA 214(b) and 221(g).

2 9 FAM 2 (U) JUSTIFICATIONS FOR. OVERCOMES. 9 FAM 2(A) (U) When a Refusal May Be Overcome (CT:VISA 628 07 12 2018). a. (U) 221(g) Cases: You should find that an applicant has overcome an immigrant visa (IV) or nonimmigrant visa (NIV) refusal under INA 221(g) in two instances: when additional evidence is presented or administrative processing is completed. (1) (U) Additional Evidence: When the applicant has presented additional evidence, allowing you to re open and re adjudicate the case. Examples include: (a) (U) An IV applicant missing a birth certificate, for instance, should be refused INA 221(g) pending that certificate (see 9 FAM 3(A) for guidance on INA 221(g) refusals). When the applicant returns with the document, you should overcome the previous refusal, allowing the case to be adjudicated.

3 (b) (U) Similarly, if an applicant refused INA 221(g) because you decided that you do not have enough information to make a finding of whether the applicant is ineligible under INA 212(a)(4) subsequently presents sufficient evidence to make a determination relating to the public charge inadmissibility ground, you should overcome the INA 221(g) refusal and process the case to completion. 9 FAM 2(B)(5) provides guidance on when to use INA 221(g) and when INA 212(a)(4) would be more appropriate in these circumstances. 1/3. 30/10/2018 9 FAM (U) OVERCOMING A REFUSAL. NOTE: 22 CFR (e) limits the period of review of an IV refusal to one year from the date of refusal.. (2) (U) Administrative Processing: (a) (U) INA 221(g) refusals entered for administrative processing may be overcome once you can determine administrative processing is completed and you receive any required advisory opinion or other needed information.

4 (b) Unavailable b. (U) 214(b) Cases: (1) (U) In general: Most INA 214(b) cases are refused because the applicant has not convinced the officer of his or her intent to return abroad after his or her stay in the United States, as required under INA 101(a)(15)(B) (see 9 FAM 2(C). and 9 FAM 2). Except in unusual cases, as described in 9 FAM . 3(D), these refusals should not be overcome. Instead, you should suggest the applicant reapply when relevant circumstances have changed. If you believe you have an unusual case in which an INA 214(b) refusal was erroneous and should be overcome, you should discuss it with your supervisor. (2) (U) Refusal in error: Overcome/Waive (O/W) may be appropriate for INA. 214(b) cases when a supervisor determines the INA 214(b) refusal clearly was in error for example, if the supervisor determines the adjudicating consular officer incorrectly found the applicant did not fit the standards of the particular NIV.

5 Classification for which he or she had applied (see 9 FAM 2(B)(4)) or the supervisor determines, following a re interview in person or by telephone, that the applicant's circumstances overcome the INA 214(b) presumption of immigrant intent, based on local conditions and any written adjudication standards established by the manager. If a supervisor intends to overcome a denial in such a case, he or she should discuss it with the refusing officer and take personal responsibility for the case and complete adjudication following the re interview. c. (U) Documenting Overcome/Waive: All Overcome/Waive decisions must be supported by clear case notes explaining the error or additional information that resulted in the Overcome/Waive. 9 FAM 2(B) (U) Change of Circumstances 9 FAM 2(B)(1) (U) 214(b) Refusals (CT:VISA 63 02 26 2016).

6 (U) Most refusals of NIVs are made under INA 214(b) which requires that every visa applicant is presumed to be an immigrant until he or she establishes entitlement to nonimmigrant status under INA 101(a)(15) at the time of application for a visa. There is no waiver of this ground of ineligibility, nor are there any provisions under INA 214(b) for permanent refusals. The determination that the alien is not a nonimmigrant can be made only on the basis of the facts existing at the time of a specific visa application. The fact that a visa applicant was unable to establish nonimmigrant status at one time would not preclude such applicant from subsequently qualifying for a visa by showing a change in circumstances. 2/3. 30/10/2018 9 FAM (U) OVERCOMING A REFUSAL. 9 FAM 2(B)(2) (U) Overcoming a Refusal Based on a DHS.

7 Finding (CT:VISA 63 02 26 2016). (U) If you refuse an application based on a definitive DHS lookout entry and DHS. subsequently determines that the finding was erroneous and deletes its entry, then you may process the case to conclusion. You should send in a Visas CLOK cable requesting deletion of any post originated CLASS entry which may have been made as a result of the DHS entry. If, notwithstanding the DHS removal of the entry, you believe that the facts on which the DHS entry were based justify a finding of inadmissibility, you should refer the case to the Department for an advisory opinion (AO). 9 FAM 2(C) (U) Never Delete a Case That Meets the Definition of Making a Visa Application or a Refusal (CT:VISA 499 02 13 2018). (U) In no case should you delete a case that meets the criteria for having made a visa application as outlined in 9 FAM 3 or a refusal from the system.

8 (1) (U) Even if the refusal is overturned, there must be a record of the original adjudication and subsequent decisions. (2) (U) Officers should use the overcome/waive functions in the Nonimmigrant Visas (NIV) and Immigrant Visa Overseas (IVO) systems when appropriate. (See 9. FAM 4(B) and 9 FAM 4(A).). (3) (U) You should only delete cases from the system when no visa application has been made per 9 FAM 3, or when a case is clearly a duplicate entered in error. See 9 FAM 7 for information on deleting cases. (4) (U) An NIV record without an application can occur when cases have been data . entered but the case does not meet the definition of having made a visa application (see 9 FAM 3). (5) (U) Some posts may still have test cases in the system that were put in during IV.

9 Or NIV system installations. You may delete those cases. (6) (U) 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. 9 FAM 2(D) (U) Waivers of Ineligibility (CT:VISA 63 02 26 2016). (U) You should refer to the ineligibility specific notes in 9 FAM 302 as well as the notes in 9 FAM 305 regarding waivers for information regarding the availability of waivers of ineligibility for immigrant and nonimmigrant visa applicants. 3/3.