UNCLASSIFIED (U)

9 fam 302
(U) grounds of ineligibility

9 FAM 302.1 

(U) Ineligibility based on Inadequate documentation of qualification - INA 212(a)(5), INA 212(a)(7), INA 214(b), INA 221(g), and INA 222(g)

(CT:VISA-1366;   09-15-2021)
(Office of Origin: CA/VO)

9 FAM 302.1-1  (U) Statutory and regulatory authority

9 FAM 302.1-1(A)  (U) Immigration and Nationality Act

(CT:VISA-160;   08-19-2016)

(U) INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(41) (8 U.S.C. 1101(a)(41)); INA 212(a)(5)(A) (8 U.S.C. 1182(a)(5)(A)); INA 212(a)(5)(B) (8 U.S.C. 1182(a)(5)(B)); INA 212(a)(5)(C) (8 U.S.C. 1182(a)(5)(C)); INA 212(a)(5)(D) (8 U.S.C. 1182(a)(5)(D)); INA 212(a)(7)(A) (8 U.S.C. 1182(a)(7)(A)); INA 212(a)(7)(B) (8 U.S.C. 1182(a)(7)(B)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA 212(k) (8 U.S.C. 1182(k)); INA 212(r) (8 U.S.C. 1182(r); INA 214(b) (8 U.S.C. 1184(b), INA 221(g) (8 U.S.C. 1201(g); INA 222(g) (8 U.S.C. 1202(g)); INA 291 (8 U.S.C. 1363).

9 FAM 302.1-1(B)  (U) Code of Federal Regulations

(CT:VISA-160;   08-19-2016)

(U) 8 CFR 205.2(c); 8 CFR 212.15(g)(2); 20 CFR 656.5; 20 CFR 656.15; 20 CFR 656.16; 20 CFR 656.17; 20 CFR 656.18; 20 CFR 656.20; 20 CFR 656.30; 22 CFR 40.6; 22 CFR 40.51; 22 CFR 40.52; 22 CFR 40.53; 22 CFR 40.71; 22 CFR 40.72; 22 CFR 40.201; 8 CFR 41.101

9 FAM 302.1-1(C)  (U) Public Laws

(CT:VISA-160;   08-19-2016)

(U) Immigration and Nationality Act Amendments of 1976, Public Law 94-571; Armed Forces Immigration Adjustment Act of 1991, Public Law 102-110; Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, sec. 343.

9 FAM 302.1-2  (U) Presumption of Immigrant Status - ina 214(b)

9 FAM 302.1-2(A)  (U) Grounds

(CT:VISA-1349;   08-27-2021) 

(U) An applicant (other than a H-1B, L, and V applicant) is presumed to be an immigrant until they establish to your satisfaction that they are entitled to nonimmigrant status under INA 101(a)(15). 

9 FAM 302.1-2(B)  (U) Application

9 FAM 302.1-2(B)(1)  (U) In General

(CT:VISA-1349;   08-27-2021)

(U) NIV cases are most often refused under INA 214(b), a ground of refusal that applies only to NIV applications. 

9 FAM 302.1-2(B)(2)  (U) How Do I Apply INA 214(b)?

(CT:VISA-1349;   08-27-2021)

(U) With limited exceptions, all visa applicants are presumed to be intending immigrants and ineligible for an NIV until they satisfy you that they qualify for one of the NIV categories defined in INA 101(a)(15).  INA 291 places the burden of proof on the applicant, which means the applicant must convince you that they are qualified for the requested visa.  Otherwise, the applicant must be considered to be an applicant for immigrant status and is not eligible for an NIV.

9 FAM 302.1-2(B)(3)  (U) Refusals Under INA 214(b) Versus a Finding of Permanent Ineligibility

(CT:VISA-1349;   08-27-2021)

a. (U) In General:  A refusal under INA 214(b) is not a finding of permanent ineligibility, in contrast to an INA 212(a)(6)(C)(i) refusal, for example, which would be a permanent ineligibility.  INA 214(b) serves as a basis for refusal of a visa to an applicant who has not established entitlement to an NIV classification by proving to you that they fall within one of the visa categories reflected in INA 101(a)(15).  An NIV applicant who is refused a visa under INA 214(b) may be eligible for an Immigrant Visa (IV) or another NIV classification or may even reapply for the same visa classification and establish eligibility to the satisfaction of the consular officer who adjudicates the new application.

b. (U) Applying Both INA 214(b) and INA 212(a)In cases where an applicant is not qualified for the visa, you must refuse the visa application under all ineligibilities that apply to that applicant during that visa application. This means that if an applicant is ineligible under both INA 214(b) and a permanent ground of ineligibility (or multiple grounds of ineligibility) you must enter all apply (for example, an applicant may be ineligible under INA 214(b) and INA 212(a)(6)(C)(i); so you would enter both refusals.) Therefore, in NIV cases where an applicant is ineligible under a permanent ground of ineligibility, you must still make the finding as to whether the applicant overcomes INA 214(b).  

9 FAM 302.1-2(B)(4)  (U) Standards for Applying INA 214(b)

(CT:VISA-1349;   08-27-2021)

a. (U) NIV Qualification Standards:  When adjudicating NIV applications, you must be careful to recognize that the standards for qualifying for an NIV are found in the relevant subsections of INA 101(a)(15) and corresponding regulations and FAM guidance, not in INA 214(b) itself.  INA 214(b) does not provide any independent standards for qualifying for an NIV.  The applicant's failure to convince you that they meet any one of the specific requirements of the applicable NIV category will result in an INA 214(b) denial. (See 9 FAM 401.1-3(E) for more information on INA 214(b) and immigrant intent.)

b. (U) Example:  For example, failure to possess sufficient funds to cover educational expenses results in a 214(b) denial of a student visa since that is a requirement of the F-1 visa classification; failure to make a substantial investment results in a 214(b) denial of a treaty investor visa since that is the requirement of the E-2 visa classification; and the failure to possess the intent not to abandon a foreign residence results in a 214(b) denial of a B visa since that is a requirement of the B visa classification.  In each of these cases, the visa is denied under 214(b) because the applicant has not met the requirements of that visa classification.

c.  (U) Overcoming:  The 214(b) basis of refusal may be overcome in a subsequent visa application if the applicant demonstrates to your satisfaction that they meet the requirements of the NIV classification.

9 FAM 302.1-2(B)(5)  (U) INA 214(b) Not Applicable in All Categories

(CT:VISA-1349;   08-27-2021)

(U) Congress expressly excluded H-1B, L, and V visas from the statutory presumption of immigrant intent contained in INA 214(b).  When adjudicating visa applications in these categories, you must review FAM guidance and other statutory provisions, including INA 212(a) grounds of ineligibility that are applicable to these categories of visas.

9 FAM 302.1-2(B)(6)  (U) INA 214(b) More than Just Ties

(CT:VISA-1349;   08-27-2021)

a. (U) INA 214(b) does not simply mean that applicants must have "ties" to their home country.  A refusal under INA 214(b) means that the applicant has failed to qualify for an NIV.  The most common reason that an applicant fails to qualify is a failure to convince you that they are not an intending immigrant, which is required for most NIV classifications.  However, while a failure to overcome the presumption of being an intending immigrant is the most common reason for an INA 214(b) finding, there are other reasons that an applicant could fail to qualify for an NIV and thus be found ineligible under INA 214(b).

b. (U) INA 214(b) requires the visa applicant to establish to the satisfaction of the consular officer that they are entitled to nonimmigrant status under INA 101(a)(15).  This simply means that the NIV applicant must prove to you that they meet the standards required by the visa classification for which they are applying.  In other words, the applicant must make a credible showing to you that all activities in which the applicant is expected to engage in while in the United States are consistent with the claimed nonimmigrant status.  A visa adjudication requires you to assess the credibility of the applicant and of the evidence they submit in support of the application, including oral answers to interview questions.  INA 291 places the burden of proof at all times on the applicant.

c. (U) If you are not satisfied that the applicant meets the standards required by the visa classification for which they are applying, you must refuse the applicant under INA 214(b).  This is true even in cases where the applicant has convinced you that they are not an intending immigrant, and even in cases where the applicant is also ineligible under another section of the law (for example, INA 212(a)(2)(C), INA 212(a)(3), INA 212(a)(6)(C), or INA 212(a)(6)(E)).

9 FAM 302.1-2(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020)   

(U) An AO is not required for an INA 214(b) refusal; however, if you have a question about the interpretation or application of a law or regulation, you may request guidance from your adviser in L/CA.

9 FAM 302.1-2(D)  (U) Waiver

9 FAM 302.1-2(D)(1)  Waivers for Immigrants

(CT:VISA-1349;   08-27-2021)   

(U) INA 214(b) does not apply to immigrant visa applicants.

9 FAM 302.1-2(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-773;   05-03-2019) 

(U) There is no waiver available for a refusal under INA 214(b).  An applicant may overcome a 214(b) refusal.  For more information on overcoming a refusal, see 9 FAM 306.2-2.

9 FAM 302.1-2(E)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-3  (U) Documentation Requirements for Immigrant Visa Applicants - INA 212(a)(7)(A)

9 FAM 302.1-3(A)  (U) Grounds

(CT:VISA-773;   05-03-2019)

(U) To comply with INA 212(a)(7)(A), an immigrant must possess a valid, unexpired U.S. immigrant visa (IV) (and any other documents needed for admission as an immigrant) and valid, unexpired travel document at the time of seeking permission for admission into the United States. INA 212(a)(7)(A) is generally applied by a CBP officer at the port of entry.  INA 212(a)(7)(A) is not applicable to nonimmigrant visa applicants.

9 FAM 302.1-3(B)  (U) Application

(CT:VISA-1349;   08-27-2021) 

a. (U) You may not issue a visa to the holder of an improperly issued travel document, whether it was obtained either by providing fraudulent biographical data or if it was issued by other than a competent authority as described in 9 FAM 403.9-3(A)(1).  Likewise, you may not issue a visa in an expired passport unless the applicant is able to present collateral documentation, which together with the expired passport, meets the requirements of INA 101(a)(30) and INA 212(a)(7)(B)(i)(I).

b. (U) In addition to a valid travel document, immigrants must have valid documentation to demonstrate eligibility for a visa.  You must ensure that the immigrant visa application complies with the documentation requirements of INA 222(a) through (d).

9 FAM 302.1-3(C)  (U) Advisory Opinions

(CT:VISA-1349;   08-27-2021)  

(U) INA 212(a)(7)(A) is applied by CBP at the port of entry.  You may encounter visa applicants whom CBP has found ineligible under INA 212(a)(7)(A).  An AO is not required in these cases; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from your adviser in L/CA.

9 FAM 302.1-3(D)  (U) Waivers

9 FAM 302.1-3(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1349;   08-27-2021)  

(U) No waiver is available at the time of visa application, and this ground of refusal is generally not applied by consular officers since it has to do with the applicant presenting him or herself for admission to the United States.  However, under INA 212(k), DHS has the discretionary authority to admit an IV holder at the port of entry, despite this ineligibility.  You may issue over a previous finding of INA 212(a)(7)(A) ineligibility if the applicant has overcome the basis of the ineligibility (e.g., the applicant did not have a valid travel document in the past, but now does.).  Follow guidance in 9 FAM 303.3-5(E)(5) in these cases. 

9 FAM 302.1-3(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1349;   08-27-2021)

(U) INA 212(a)(7)(A) is not applicable to nonimmigrant visa applicants.

9 FAM 302.1-3(E)  Unavailable

(CT:VISA-1349;   08-27-2021)

Unavailable

9 fam 302.1-4  (U) documentation requirements for Nonimmigrant visa applicants - INA 212(a)(7)(B)

9 FAM 302.1-4(A)  (U) Grounds

(CT:VISA-1349;   08-27-2021)

(U) A nonimmigrant without a passport valid for at least six months from the date of the individual's application for admission is ineligible under INA 212(a)(7)(B). Likewise, if an applicant presents him or herself for admission at a U.S. port of entry and is not in possession of either a valid nonimmigrant visa or a border crossing card, CBP will normally find that applicant ineligible under INA 212(a)(7)(B).  In rare instances waivers of and exemptions from these documentary requirements are possible and are detailed in 9 FAM 201.1.  INA 212(a)(7)(B) is not applicable to immigrant visa applicants.

9 FAM 302.1-4(B)  (U) Application

9 FAM 302.1-4(B)(1)  (U) Passports and Visas

(CT:VISA-1240;   03-09-2021)

(U) Reserved.

9 FAM 302.1-4(C)  (U) Advisory Opinions

(CT:VISA-1349;   08-27-2021)

(U) INA 212(a)(7)(B) is applied by CBP at the port of entry, however, you may encounter visa applicants whom CBP has previously identified as ineligible pursuant to INA 212(a)(7)(B).  An AO is not required in these cases; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from your adviser in L/CA. 

9 FAM 302.1-4(D)  (U) Waiver

9 FAM 302.1-4(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016) 

(U) INA 212(a)(7)(B) is not applicable to immigrant visa applicants.

9 FAM 302.1-4(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1349;   08-27-2021)

(U) For more information about the waiver or exemptions from passport and visa requirements, see 9 FAM 201.1 and 9 FAM 305.3-1(C).  You may issue over a previous finding of INA 212(a)(7)(B) ineligibility if the applicant has overcome the basis of the ineligibility (e.g., the applicant now has a valid travel document).  Follow guidance in 9 FAM 303.3-5(E)(5) in these cases.   

9 FAM 302.1-4(E)  Unavailable

9 FAM 302.1-4(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-4(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-5  (U) Labor Certification Requirements - INA 212(a)(5)(A)

9 FAM 302.1-5(A)  (U) Grounds

(CT:VISA-1349;   08-27-2021)

(U) INA 212(a)(5)(A) makes ineligible any employment-based second and third preference category immigrant visa applicants whose intended employment in the United States has not been certified by the Department of Labor or who are clearly unqualified for their certified employment.  There are some exceptions for second preference applicants.  See 9 FAM 302.1-5(B)(2) below.

9 FAM 302.1-5(B)  (U) Application

9 FAM 302.1-5(B)(1)  (U) In General

(CT:VISA-1349;   08-27-2021)

a. (U) The Department of Labor (DOL) has responsibility for granting labor certifications for two categories of employment-based immigrants:  preference groups 2 and 3.  Second preference includes immigrants who are members of the professions holding advanced degrees and immigrants of exceptional ability in the sciences, arts, or business.  Third preference includes professionals, skilled, and other unskilled workers.

b. (U) General Background on Labor Certification by DOL: The Department of Labor has authority over labor certification for permanent employment of a noncitizen worker.  Several steps in the recruitment process are designed to ensure that the employment of a noncitizen worker will not adversely affect the job opportunities, conditions, or wages for U.S. workers.

9 FAM 302.1-5(B)(2)  (U) Labor Certification

(CT:VISA-1349;   08-27-2021)

(U) In general, an applicant in the second and third preferences must possess an individual labor certification, an application for Schedule A certification, or evidence that they qualify for the Labor Market Information Pilot Program.  However, in the case of a second preference applicant, the Secretary of the Department of Homeland Security (DHS) may waive the job offer requirement, and thus a labor certification, for applicants of exceptional ability in the sciences, arts, professions, or business and for certain noncitizen physicians (see 9 FAM 502.4-3(E)) when it is deemed to be in the national interest.

9 FAM 302.1-5(B)(3)  (U) Obtaining Labor Certification

(CT:VISA-1349;   08-27-2021)

a. (U) In General:  The Department of Labor attempts to minimize the operational impact of its statutory responsibilities with “Schedules” for types of cases in which either a definite approval or a very probable disapproval will result, without having to undertake the individual analysis required in the great majority of cases. 

b. (U) Schedule A Certifications:

(1)  (U) The Department of Labor’s Schedule A (see 20 CFR 656.5) sets forth occupational and professional groups in which there is a nationwide shortage of workers willing, able, qualified (or equally qualified in the case of applicants who are members of the teaching profession or who have exceptional ability in the sciences or the arts), and available and in which the employment of applicants will not, presumably, affect adversely the wages and working conditions of workers in the United States similarly employed.

(2)  (U) An employer for an applicant in an occupation that qualifies for Schedule A may file an application for certification with the appropriate DHS office.  Schedule A, as amended by the Immigration Act of 1990, lists two such occupational groups as follows:

(a) (U) Group I - Physical Therapists and Nurses; and

(b)  (U) Group II - Applicants of Exceptional Ability in Sciences or Arts.

(c)  (U) Because the Immigration Act of 1990 requires all applicants for employment-based classification to be the beneficiary of a petition filed with DHS, you no longer have responsibility for determining whether an applicant is within one of these occupational groups.  You must refer applicants who may qualify under Schedule A to the appropriate DHS office.

c.  (U) Individual Job Offer Certifications:  An employer who wishes to file a labor certification for a beneficiary who does not qualify for Schedule A certification must file a Department of Labor Application for Alien Employment Certification form and any attachments required with the local Employment Service office (see 20 CFR 656.17 or 20 CFR 656.18) serving the area where the beneficiary is to be employed. 

9 FAM 302.1-5(B)(4)  (U) Approved Labor Certifications

(CT:VISA-1349;   08-27-2021)

a. (U) Validity of Approved Labor Certifications:

(1)  (U) Department of Labor regulations (20 CFR 656.30(a)) provide that all labor certifications, unless invalidated by a DHS or consular officer upon a determination of fraud or willful misrepresentation, are valid for an indefinite period and do not require re-certification.  (See 9 FAM 302.1-5(B)(10) below for pertinent procedures.)

(2)  (U) If the employer has withdrawn the offer of employment or the applicant has decided not to accept the employment offered (see 9 FAM 302.1-5(B)(4) paragraph b below); or if the applicant’s registration was terminated because they failed to apply for a visa within one year of notification of the availability of a visa (see INA 203(g)), you must return the petition to the approving office of DHS under cover of a memorandum explaining why the petition is being returned.

b. (U) Limitations on Labor Certifications:

(1)  (U) Cases Involving Individual Job Offers:  In all cases involving individual job offer certification, the applicant or the applicant’s employer may act at any time to terminate the validity of the certification.  If the employer withdraws the offer of employment or if the applicant decides not to accept the employment, the validity of the certification is terminated.  Such action could occur at any time after the certification is issued.  In all cases, a job offer certification is valid only for the job, and the geographic location set forth by the prospective employer in Form ETA-9089, Application for Permanent Employment Certification, or Form ETA-750, Application for Alien Employment Certification.

(2)  (U) Cases Involving Schedule A Certifications or Sheepherders:  A labor certification for a Schedule A occupation or sheepherders is valid only for the occupation set forth on the Form ETA-750, Application for Alien Employment Certification, or the Form ETA-9089, Application for Permanent Employment Certification, and only for the beneficiary named on the original application unless a substitution was approved prior to July 16, 2007.  The certification is valid throughout the United States unless the certification contains a geographic limitation. 

(3)  (U) Limitations on Pre-1977 Certifications:  Public Law 94-571 contains a savings clause for beneficiaries who filed for third preference status prior to January 1, 1977, regardless of when their application was approved.  Public Law 102-110 provided for the up-grading of former third preference applicants to employment-based second preference.  Such beneficiaries are exempt from the necessity of having a job offer to retain their eligibility for an immigrant visa under INA 203(b)(2). 

c.  (U) Verifying Individual Job Offer Cases:

(1)  (U) Applicant Going to Certified Employment:  To be admissible under INA 212(a)(5)(A):

(a)  (U) An applicant for whom an individual offer of employment has been certified must still be going to that specific employment when admission is sought at a port of entry (POE);

(b)  (U) To ensure that the applicant is aware that admissibility is so conditioned, you must, when issuing immigrant visas to applicants with certified individual employment offers, require the applicant to read and sign a statement and attach a copy of the following statement to the immigrant visa (IV).

STATEMENT TO BE SIGNED BEFORE CONSULAR OFFICER

Prior to Visa Issuance, by Immigrant Whose Application for Labor Certification Includes Job Offer on Form ETA 9089 or ETA-750, Part A “Offer of Employment”

I am aware that my eligibility for an immigrant visa and for admission to the United States is based upon the fact that I have been offered a job by the employer who executed the job offer and/or visa petition in my behalf, and also upon my intention to enter into his/her employ.  To the best of my knowledge and belief the job described in the job offer and/or visa petition is still available to me.  If I am informed of any change in this employment before I leave for the United States, I will immediately notify the nearest United States Consul of such change.  I intend to proceed to that employer and commence the job described promptly after my arrival in the United States.

 

______________________

SIGNATURE

 

______________________

DATE

 

(c)  (U) The post must reproduce the statement locally and translate it as required.  When a visa applicant informs you of a material change in plans (for example, a change of employer, type of work to be performed, or location of employment), you must require the applicant to obtain certification for the new employment or otherwise satisfy certification requirements before a visa may be issued.  If a material change of plans becomes known after a visa has been issued, you must withdraw the visa for revocation pursuant to 9 FAM 504.12, and so inform the applicant.

(2)  (U) Continuing Availability of Certified Employment:  In certain cases, involving labor certification, it may be necessary to confirm that the original offer of employment remains open to the applicant.  In any case in which the instruction packet (formerly known as “Packet 3” (see 9 FAM 504.1-2)) is mailed to the applicant more than nine months after the date of certification of the job offer, you must ensure that the applicant receives a copy of the notice shown in 9 FAM 302.1-5(B)(4) paragraph c(1)(b).  This notice requires the applicant to obtain from the employer in the United States a written statement that the employment offered to the applicant is still available.  Posts should reproduce the notice locally and translate it as required.  When translated copies are reproduced, the English-language text should be reproduced as well, since applicants send the form to prospective employers. 

d. (U) Commencement of Validity Period:  The Department of Labor’s regulations (see 20 CFR 656.30(a)) provide that:

(1)  (U) Labor certification involving job offers is considered validated on the date the local employment service office date-stamped the application;

(2)  (U) The validity date of labor certifications for Schedule A occupations or sheepherders is the date the application was dated by the Immigration Officer; and

(3)  (U) The filing date, established under 20 CFR 656.17(c), of an approved labor certification may be used as priority date by the DHS and the Department, as appropriate.

e. (U) Substitution of Beneficiary on Approval Labor Certification:  If the DHS service center determines that a substituted beneficiary meets the requirements set forth in the original certification as of the date it was filed with the state employment office and the Form I-140, Immigrant Petition for Alien Worker, is otherwise approved, the petition should be approved and processed like any other Form I-140 petition.  The priority date must be the date on which the labor certification was filed with any office within the employment service system of the Department of Labor.

f.  (U) Change in Petitioner's Name, Ownership, or Location:

(1)  (U) When a New Petition is Required:  A new Form I-140, Immigrant Petition for Alien Worker, must be filed if:

(a)  (U) The petitioning employer:

(i)     (U) Has been bought out by, or merged into, another corporation;

(ii)    (U) Has experienced a major organizational change; or

(iii)    (U) Has changed its name;

(b)  (U) The assets of a corporate petitioner have been sold; or

(c)  (U) There is a change in the location of the business entity where the applicant will be employed.

(2)  (U) When There is No “Significant” Change in Ownership:  If, however, the petitioner is a sole proprietor or a partnership, and there is a change in the name of the business entity for which the applicant will work, without a significant change in the ownership of the business, no new petition is required provided the position described in the petition still exists.

(3)  (U) New Petition When Location of Employment Changes:  A new petition is required in non-Schedule A cases where the petitioning employer has moved the location of the business to a different city or town.  A non-Schedule A labor certification is valid only in the standard metropolitan statistical area (MSA) which includes the place of employment shown on the Form ETA-750, Application for Alien Employment Certification, or Form ETA-9089, Application for Permanent Employment Certification.  If the employer moves to a different location in the same standard metropolitan statistical area, the certification remains valid.  Nevertheless, DHS requires that a new Form I-140, Immigrant Petition for Alien Worker, be filed whenever there is a change of location in a non-Schedule A case. 

(4)  (U) Referring the Case for an AO:  If you have difficulty determining whether there has been a "significant" change in ownership, the case should be referred to L/CA.

g. (U) How to Process Labor Certifications with Apparent Irregularities:

(1) (U) Undisclosed Family Relationship:  While it is not prohibited for an employer to petition a beneficiary with familial ties, the relationship must be disclosed on the application for labor certification.  When a familial relationship is disclosed, DOL will scrutinize such cases to ensure there is no undue influence over the recruitment process and to determine that recruitment efforts were genuine.  See 9 FAM 302.1-5(B)(10) paragraph d regarding the totality of the circumstances test as outlined by the Board of Labor Certification Appeals.  If post finds that a familial relationship between the prospective employer and the applicant exists and was not disclosed to DOL, post should reach out to L/CA for guidance.

(2) (U) Suspicions That Petitioner Did Not Make Good Faith Effort to Fill the Position with Other Qualified Candidates:  You may encounter cases where it may appear that the petitioner did not advertise the position or did not seriously consider other potentially qualified candidates.  As a consular officer, you have limited authority to revoke labor certifications only in cases where the applicant engaged in a material misrepresentation.  See 9 FAM 302.1-5(B)(10) paragraph b.  However, you do not have authority to address possible violations by the petitioner in the recruitment process.  In such cases, posts should continue processing the application at post as a petition return based on these concerns will not provide a sufficient basis for USCIS to revoke the petition.   

9 FAM 302.1-5(B)(5)  (U) Employment Intent Upon Admission

(CT:VISA-1349;   08-27-2021)

a. (U) Labor Certification Based on Job Offer:  Any applicant whose certification was based on an offer of employment must proceed immediately to the employment specified in the visa petition and/or job offer.  An applicant who is unable or unwilling to proceed to the specified employment is ineligible under INA 212(a)(5)(A).  In order that an applicant may be aware that eligibility is conditioned on an intent to proceed to the specified employment, you must require the applicant to read and sign a statement affirming such intention and attach the signed statement to the applicant’s visa.  Posts shall reproduce the statement (see 9 FAM 302.1-5(B)(4) paragraph c(1)(b)) locally and translate it as required. 

b. (U) Applicant Not Going to Specified Employment or Seeking Work Outside Stated Profession:  You should not issue a visa if there is reason to believe that the applicant is not going to the employment specified in the job offer or does not intend to engage in work related to the profession concerned.  You should tell the applicant what steps may be taken to show eligibility for the visa category based on the intended employment, if it appears that the intended employment could qualify. 

c.  (U) Applicant Appears Overqualified for Position:  The belief that an applicant will not accept a menial job because of their socio-economic status is not sufficient to justify the cancellation of Part B of a labor certification or to justify a finding of ineligibility under INA 212(a)(5)(A). 

9 FAM 302.1-5(B)(6)  (U) Consular Officer Responsibility Regarding Certification

(CT:VISA-1349;   08-27-2021) 

a. (U) In General:  The Department of Labor grants a labor certification to certify that there are not sufficient U.S. workers able, willing, qualified, and available to accept the opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.  USCIS will approve an I-140 based on information submitted by the employer about the beneficiary.  The certifying office has no means of verifying that the beneficiary does, in fact, possess the skills, training, experience, or other qualifications claimed in the documents.  Therefore, if you, based upon the interview or an investigation, have reason to doubt whether the applicant possesses such skills, training, experience, or other qualifications, you have a responsibility to resolve such doubts.  (See 9 FAM 302.1-5(B)(10) below.)  The Department of Labor has stressed that experience gained with the certified employer should be considered without prejudice in assessing the applicant’s qualifications for the certified job. 

b. (U) Authority for Denial Under INA 212(a)(5)(A):

(1)  (U) Drawing upon the Board of Immigration Appeals (BIA) and the Board of Alien Labor Certification Appeals (BALCA) precedents, we have concluded that a "Totality of the Circumstances Test," rather than a "per se rule" should be used to determine whether an applicant intends to comply with the labor certification.  Before you deny an applicant for lack of intent to accept employment, you should have objective reasons to believe the applicant does not intend to accept the employment.  These objective reasons should be evaluated using the "totality of circumstances" standard.

(2)  (U) The factors listed below, although not exclusive, tend to indicate that an applicant will not accept the prospective employment:

(a)  (U) Admission or statements that indicate that the applicant will not undertake the employment or will do so for only briefly;

(b)  (U) Evidence that the applicant has bought or leased housing in a distant or different location in the United States from where the prospective employment will be located without credible explanation;

(c)  (U) Evidence that the applicant has bought a business in the United States or other evidence that the applicant intends to engage in some other full-time activity in the United States other than the prospective employment; or

(d)  (U) Evidence that the applicant has never worked before or has never worked in the same type of business as that of the prospective employment.

(3)  (U) In the case of professionals, an applicant may legitimately intend to accept the employment even though commencement may not be immediate.  It may be necessary for the applicant to complete licensing procedures first.  The applicant must intend to commence work in the foreseeable future.

9 FAM 302.1-5(B)(7)  (U) Work Experience

(CT:VISA-1349;   08-27-2021)

a. (U) Requirements for Labor Certification Approval:  In cases where work experience was required for the approval of the labor certification, the experience must have been gained prior to filing the labor certification.  If you have reason to believe that an applicant had the required experience at the time the labor certification was filed, even if that experience was not indicated at the time of the filing, you may consider the labor certification to have been properly approved. 

b. (U) Experience Gained While in Unlawful Status:  There is no law or regulation which precludes experience gained by an applicant while in unlawful status from being applied to fulfill job requirements for certification provided the experience was gained prior to filing the labor certification. 

9 FAM 302.1-5(B)(8)  (U) Labor Certification Indicates Higher Wage than Applicant Currently Earning

(CT:VISA-1349;   08-27-2021)

(U) In a situation where an applicant is already working for the employer who filed the labor certification, and the applicant is currently earning a salary lower than the labor certification indicates the applicant will be paid, the Department of Labor has determined that the higher wage need not be paid until the applicant immigrates to the United States.

9 FAM 302.1-5(B)(9)  (U) English Proficiency

(CT:VISA-1240;   03-09-2021)

(U) Proficiency in English is not essential to certification under Schedule A nor for job offer positions, except for graduates of medical schools.  You must evaluate the importance of English proficiency, particularly for secretaries, stenographers, and teachers, in relation to the public charge provisions in INA 212(a)(4).  Proficiency in English is essential if an employer specifies on Part A of Form ETA-750, Application for Alien Employment Certification, that knowledge of English is required for satisfactory job performance, or in the case of a graduate of a medical school.

9 FAM 302.1-5(B)(10)  (U) Misrepresentations in Labor Certification Cases

(CT:VISA-1349;   08-27-2021)

a. (U) In General:

(1)  (U) The labor certification and employer’s statements made in the certification process are assumed to be valid in the absence of any evidence to the contrary.  You are not required to readjudicate every labor certification.  However, there are some indicators that may justify further scrutiny, such as:

(a)  (U) The fraud rate in cases of a particular profession in the consular district;

(b)  (U) Inconsistencies between the applicant’s general demeanor and the claimed profession; or

(c)  (U) Obvious discrepancies among the petition’s supporting documentation that warrant investigation by the fraud prevention unit.

(2)  (U) If you determine that the certification was obtained by employer fraud or misrepresentation of a material fact, you should document your findings in a memo and return the petition to U.S. Citizenship and Immigration Services (USCIS) with a recommendation for revocation. 

(3)  (U) The Department of Labor has delegated authority to consular officers to invalidate a labor certification when the beneficiary committed a material misrepresentation in the labor certification application.  Invalidation of the labor certification automatically revokes the petition in accordance with the DHS regulations at 8 CFR 205.1(a)(3)(iii), and the Department of Labor, 20 CFR 656.30 or 656.31.

(4)  (U) If you determine that the certification was obtained by fraud or misrepresentation of a material fact on the part of the applicant, you must submit an AO request to the Department.  If the Department concurs, then you may:

(a)  (U) Invalidate the labor certification;

(b)  (U) Cancel any priority date obtained therefrom; and

(c)  (U) Refuse the visa application under INA 212(a)(5)(A).

b. (U) Misrepresentation by the Employee:  Since misrepresentation by the employee would be considered concealment of an independent ground of ineligibility (i.e., INA 212(a)(5)(A)), a material misrepresentation of the employee’s qualifications for the position that result in an AO concurring in cancellation of the labor certification would also result in the visa applicant being found ineligible under INA 212(a)(6)(C)(i).

c.  (U) Misrepresentation by the Employer:  A misrepresentation by the employer alone would not make the applicant ineligible under INA 212(a)(6)(C).  However, if the employer is not a U.S. citizen, it might bring the employer within the purview of INA 212(a)(6)(E). 

d. (U) Cases in Which the Employee Will Be Self-Employed:  If it appears that the applicant will be self-employed or self-petitioned, that would provide a basis for returning the petition to USCIS with a recommendation for petition revocation and invalidation of the labor certification.  The Department of Labor considers the following factors under a totality of the circumstances test when  determining whether an applicant has sought self-employment certification:

(1)  (U) Whether the applicant is in a position to control or influence hiring decisions regarding the job for which the labor certification is sought;

(2)  (U) Whether the applicant is related to corporate directors, officers, or employees;

(3)  (U) Whether the applicant was an incorporator or founder of the company;

(4)  (U) Whether the applicant is involved in the management of the company;

(5)  (U) Whether the applicant is one of a small number of employees;

(6)  (U) Whether the applicant has qualifications for the job that are identical to specialized or unusual job duties and requirements stated on the application;

(7)  (U) Whether the applicant is so inseparable from the sponsoring employer because of their pervasive presence and personal attributes that the employer would be unlikely to continue operation without the applicant; or

(8)  (U) Whether the business was established for the sole purpose of obtaining labor certification for the applicant.

e. Unavailable

9 FAM 302.1-5(B)(11)  (U) Defining Full-time Employment

(CT:VISA-1349;   08-27-2021)

(U) Full-time employment usually consists of 35 to 40 hours of work a week.  The controlling principle, however, is what is prevailing for the occupation.  Airline pilots, for example, may work considerably less than 40 hours a week, but this would probably be considered full-time employment.

9 FAM 302.1-5(B)(12)  (U) Requests for Employment Information

(CT:VISA-1349;   08-27-2021)

a. (U) The Department of Labor and its regional and State offices are not equipped to provide information on job openings for prospective immigrants.

b. (U) The U.S. Employment Service is a domestic service only and cannot assist people abroad in locating employment in this country.  Therefore, you and other employees engaged in visa work must not suggest that they write to such agencies requesting advice and assistance in finding prospective employment and must, as necessary, advise them against such action.

9 FAM 302.1-5(B)(13)  (U) Procedures for Obtaining Labor Certification

(CT:VISA-1349;   08-27-2021)

(U) For detailed Department of Labor information about Schedule A labor certifications, see 20 CFR 656.5.

9 FAM 302.1-5(B)(14)  (U) Disposition of Unused Labor Certifications

(CT:VISA-1349;   08-27-2021)

a. (U) Applicant Ineligible:  When there is a refusal or a quasi-refusal and Form ETA-750, Application for Alien Employment Certification, or Form ETA-9089, Application for Permanent Employment Certification, and supporting documents are pertinent to the applicant’s ineligibility, you must retain them in the post’s refusal file.  However, posts shall retain the original of Form ETA-750-A “Offer of Employment,” or Form ETA-9089 only if it appears that the employer made incorrect statements therein or that the offer of employment was not made in good faith.  You must inform the employer that the applicant is ineligible and that the pertinent form and documents have been retained as part of the post’s file. 

b. (U) Certification Unused for Other Reasons:  If the certification will not be used because the job offer has been withdrawn or because the applicant decides not to accept the employment offered, you must return the petition and the supporting documents to the approving office of USCIS under cover of a memorandum. 

9 FAM 302.1-5(B)(15)  (U) Spouse or Child of Principal Applicant Exempt from Labor Certification

(CT:VISA-1349;   08-27-2021)

(U) The spouse or child of an applicant who has been granted an approved labor certification and is therefore not ineligible under INA 212(a)(5)(A) does not need a certification regardless of sex, dependency, or future employment plans.  Although only one spouse needs a certification or must be in a status which renders INA 212(a)(5)(A) inapplicable, the other spouse and the children would be exempt from the certification requirement only if accompanying or following to join the principal applicant.  They would not be exempt if they precede the principal applicant.

9 FAM 302.1-5(B)(16)  (U) Address of U.S. Department of Labor Regional Officers

(CT:VISA-507;   03-02-2018)

a. (U) Region I–Boston serves: (Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Puerto Rico, and Virgin Islands): U.S. Department of Labor, Employment and Training Administrator John F. Kennedy Federal Building Room E 350 Boston, MA 02203  Phone: (617) 788-0170  Fax: (617) 788-0101

b. (U) Region II- Philadelphia serves: (Delaware, Washington D.C., Maryland, Pennsylvania, Virginia, and West Virginia): U.S. Department of State, Employment and Training Administration Suite 825 East,  The Curtis Center 170 South Independence Mall West  Philadelphia, PA 19106  Phone: (215) 861-5205

c.  (U) Region III- Atlanta serves: (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee):  Regional Administrator U.S. Department of Labor/ETA, Atlanta Federal Center  61 Forsyth St. Rm. 6M12  Atlanta, Georgia  Phone: (404) 302-5300  Fax: (404) 302-5382

d. (U) Region IV – Dallas serves: (Arkansas, Louisiana, New Mexico, Oklahoma, Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, and Texas): Regional Administrator U.S. Department of Labor/ETA,  525 Griffin Street Room 317 Dallas, TX 75202  Phone: (972) 850-4600  Fax: (972) 850-4605

e. (U) Region V – Chicago serves: (Illinois, Indiana, Michigan, Minnesota, Ohio, Iowa, Kansas, Missouri, Nebraska, and Wisconsin):
Acting Regional Administrator U.S. Department of Labor/ETA, 230 South Dearborn Street, 6th floor Chicago, IL 60604 Phone: (312) 596-5403  Fax: (312) 569-5401

f.  (U) Region VI – San Francisco serves: (Arizona, California, Hawaii, Nevada, Alaska, Idaho, Oregon, Washington, and Guam):
Regional Administration U.S. Department of Labor/ETA, 90 7th Street, Suite 17-300 San Francisco, CA  94103  Phone: (415) 625-7900  Fax: (415) 625-7903 (West)  (415) 625-7923 (East)

The telephone numbers set forth in this section are not toll-free.

9 FAM 302.1-5(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020)

a. (U) Significant Changes in Ownership:  If you have difficulty determining whether there has been a "significant" change in ownership, refer the case to L/CA for an AO. 

b. (U) Invalidating Labor Certifications:  In all cases where you believe the certification should be invalidated, request an AO from L/CA.  The request must detail the basis for the doubts. 

9 FAM 302.1-5(D)  (U) Waiver

9 FAM 302.1-5(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1349;   08-27-2021)  

(U) No waiver is available at the time of visa application.  However, under INA 212(k), DHS may waive this ineligibility for an IV holder at the port of entry.

9 FAM 302.1-5(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)  

(U) INA 212(a)(5) does not apply to nonimmigrants.

9 FAM 302.1-5(E)  Unavailable

9 FAM 302.1-5(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-5(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-6  (U) UNQUALIFIED Physicians - INA 212(a)(5)(B)

9 FAM 302.1-6(A)  (U) Grounds

(CT:VISA-1349;   08-27-2021)

(U) INA 212(a)(5)(B) renders ineligible an applicant who is coming to the United States for the principal purpose of performing services as a member of the medical profession if the applicant is a graduate of a medical school not accredited, unless the applicant:

(1)  (U) Passed parts I and II of the National Board of Medical Examiners Examination (NBMEE) or an equivalent as determined by the Secretary of Health and Human Services; and

(2)  (U) Is competent in oral and written English.  INA 212(a)(5)(B) is applicable only to “graduates of a medical school” as defined in INA 101(a)(41) and only to such graduates who are beneficiaries of employment-based second or third preference petitions.  This section is not applicable to an applicant who is an immediate relative, a family-sponsored preference immigrant, or a refugee.  Moreover, it is not applicable to an applicant entitled to derivative preference status as the spouse of an employment-based preference petition beneficiary.

9 FAM 302.1-6(B)  (U) Application

9 FAM 302.1-6(B)(1)  (U) Defining “Graduates of a Medical School”

(CT:VISA-1349;   08-27-2021)

a. (U) Graduates of a Medical School:  The term “graduates of a medical school” is defined in INA 101(a)(41).  An applicant who has graduated from a foreign medical school is commonly referred to as a “foreign medical graduate” or, usually, “FMG.”

b. (U) National or International Renown:  The phrase “national or international renown” has not been defined.  Determining whether an applicant is of national or international renown is made on a case-by-case basis.  In general, evidence required to support a claim to international renown is like that required to support a claim to qualification for labor certification under Schedule A, Group II Aliens of Exceptional Ability in Sciences or Arts.  Evidence required to support a claim to national renown, while not required to be of the same high standard, would have to show a degree of excellence comparable to that which would result in national renown in the United States.

9 FAM 302.1-6(B)(2)  (U) Meeting Requirements

(CT:VISA-1349;   08-27-2021)

a. (U) In General:  An applicant subject to the provisions of INA 212(a)(5)(B) may meet the requirements of that section in one of several ways, as described in below. 

b. (U) Graduating from Accredited Medical School:  An applicant may meet the requirements of INA 212(a)(5)(B) by establishing that the medical school from which they graduated has been accredited by a body authorized to do so by the Secretary of Education.  The only body so authorized is the Liaison Committee for Medical Education (LCME).  The LCME was founded in 1942 and has confined itself to evaluating and accrediting medical schools in the United States and Canada.  In this connection, any case involving an applicant who graduated from a medical school in Canada or the United States before the accreditation system began in 1942 will require individual verification of the status of the medical school as of the time the applicant graduated. 

c.  (U) National Board of Medical Examiners (NBME) Examination: 

(1)  (U) NBME Examination Applicable to U.S. and Canadian Medical Schools:  The policy of the NBME is that only students at, or graduates of, U.S. or Canadian medical schools are eligible to take the NBME Part I and Part II Examination. (See 9 FAM 302.1-6(B)(2) paragraph c(2) below concerning the American University Medical School at Beirut.)  The NBME exam (and the FMGES) have been replaced by the United States Medical Licensing Examination (USMLE). 

(2)  (U) NBME Examination at American University in Beirut Prior to 1982:  Although the American University Medical School in Beirut, Lebanon is not a U.S. or Canadian medical school, through 1982 it had a special relationship with American education authorities under which its graduates were permitted to take the NBME Examination.  Medical students took Part I of the Examination in the next-to-last year of study and Part II shortly after graduation.  This arrangement was terminated in 1982 and graduates thereafter will not have taken the examination. 

d. (U) Examinations Equivalent to NBME Examination:  In 1992, the Federation of State Medical Boards and the National Board of Medical Examiners announced that all licensure programs would be replaced by the United States Medical Licensing Examination (USMLE).  This examination has been determined by the Secretary of Health and Human Services to be the equivalent of Parts I and II of the NBME under INA 212(a)(5)(B).  

e. (U) Special Provisions for Certain Foreign Medical Graduates:  Special provisions have been enacted by the Congress relating to foreign medical graduates (FMG’s) in the United States as of January 9, 1978.  An FMG who, as of that date, was both fully and permanently licensed to practice medicine in a State of the United States (as defined in INA 101(a)(36)) and actually practicing medicine in a State is considered to have passed Parts I and II of the NBME Examination. 

9 FAM 302.1-6(B)(3)  (U) Competence in Written and Oral English

(CT:VISA-1349;   08-27-2021)

a. (U) English not Required for Applicant of National or International Renown:  An applicant of national or international renown in the field of medicine (see 9 FAM 302.1-6(B)(1) above) is not required to demonstrate competence in written or oral English.  

b. (U) English Proficiency Examination:  An applicant required to demonstrate competence in oral and written English must do so by passing the USMLE English proficiency examination. 

c.  (U) Evidence of English Language Competence in Some Cases:  Applicants were allowed to take the 1977 VQE (the first time it was given) without first demonstrating competence in oral and written English.  This is also true of the 1982 and 1983 VQE.  In 1978, 1979, 1980, and 1981, however, an applicant had to demonstrate the requisite competence to be allowed to take the VQE.  Thus, an applicant who took the 1978, 1979, 1980, or 1981 VQE is presumed to have met the requirement for competence in oral and written English, while an applicant who took the 1977, 1982, or 1983 VQE will have to present separate evidence that the applicant meets the oral and written English competence requirement. 

d. (U) English Language Competence for Foreign Medical Graduates Licensed in United States as of January 9, 1978:  An applicant who benefits from the special provision described in 9 FAM 302.1-6(B)(2) paragraph e above (relating to FMG’s fully licensed and practicing in the United States as of January 9, 1978) will have to establish by separate evidence the requisite competence in oral and written English. 

9 FAM 302.1-6(B)(4)  (U) Adjudicating

(CT:VISA-1349;   08-27-2021)

a. (U) Determining Applicability at Time of Adjudication of Applications for Labor Certification and/or Second or Third Employment-Based Preference Petitions:  Since all applicants to whom INA 212(a)(5)(B) applies are also applicants to whom INA 212(a)(5)(A) applies, determinations under INA 212(a)(5)(B) are made in connection with the adjudication of the application for labor certification and/or, if applicable, the adjudication of the second or third preference petition.  For this reason, you will not normally have occasion to make such determinations. 

b. (U) Employment-Based Preference Petitions for Eligibility:  DHS/USCIS will not approve an employment-based preference petition on behalf of an FMG unless it has established that the beneficiary is not ineligible under INA 212(a)(5)(B).  All such petitions are supposed to bear a notation signifying that this determination has been made.  Approved employment-based preference petitions on behalf of FMGs that bear the appropriate notation should be given the same credence as any other approved petition and should be questioned only as provided for in 9 FAM 504.2.  An employment-based preference petition approved on behalf of an FMG that does not bear the appropriate notation should be returned to the approving office of USCIS with a request that the question be addressed and that the petition be appropriately annotated. 

9 FAM 302.1-6(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020) 

(U) An AO is not required for a potential INA 212(a)(5)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA.

9 FAM 302.1-6(D)  (U) Waiver

9 FAM 302.1-6(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016) 

(U) There is no waiver available for immigrant visa applicants.

9 FAM 302.1-6(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-692;   10-09-2018)

(U) This is not applicable to nonimmigrant visa applicants.

9 FAM 302.1-6(E)  Unavailable

9 FAM 302.1-6(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-6(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-7  (U) UNCERTIFIED FOREIGN HEALTH-CARE WORKERS - INA 212(a)(5)(C)

9 FAM 302.1-7(A)  (U) Grounds

(CT:VISA-1349;   08-27-2021)

(U) INA 212(a)(5)(C) of the Immigration and Nationality Act (INA) provides that, subject to INA 212(r), any applicant seeking to enter the United States, as an immigrant or a nonimmigrant, to work in the health-care occupations (other than physicians), is ineligible unless they present a certificate from the Commission on Graduates of Foreign Nursing Schools (CFNS) or an approved independent credentialing organization, verifying that:

(1)  (U) The applicant’s education, training, license, and experience meet all applicable statutory and regulatory requirements for admission into the United States specified in the application; are comparable with that of an American healthcare worker;

(2)  (U) The applicant has the level of competence in oral and written English language proficiency considered to be appropriate for the healthcare worker of the kind in which the applicant will be engaged, as shown by an appropriate score on one or more nationally recognized, commercially available, standardized assessments of the applicant’s ability to speak and write English (see 9 FAM 302.1-6(B)(3) above); and

(3)  (U) The majority of States licensing the profession in which the applicant intends to work recognize a test predicting the success on the profession’s licensing or certification examination, that the applicant has passed such examination.

9 FAM 302.1-7(B)  (U) Application

9 FAM 302.1-7(B)(1)  (U) Definitions - Healthcare Occupations

(CT:VISA-1349;   08-27-2021)

a. (U) Nurse, Professional (Medical Service) [Alternate Titles: Nurse, Certified Nurse, Licensed, Registered]:  applies to persons meeting the educational, legal, and training requirements to practice as professional nurses, as required by a State Board of Nursing.  This individual performs acts requiring substantial specialized judgment and skill, care and counsel of ill, injured, or infirm persons and in promotion of health and prevention of illness.  Classifications are made according to types of nursing activity such as:

(1)  (U) Director;

(2)  (U) Nursing Service (Medical Service); or

(3)  (U) Nurse, General Duty (Medical Service).

b. (U) Physical Therapist (Medical Service) [Alternate Titles Physiotherapist]:

(1)  (U) Plans and administers medically prescribed physical therapy treatment for patients suffering from injuries, or muscle, nerve, joint, and bone disease, to restore function, relieve pain, and prevent disability; reviews physicians’ referrals (prescription) and patients’ conditions and medical records to determine physical therapy treatment required;

(2)  (U) Tests and measures patients’ strength, motor development, sensory perception, respiratory and circulatory efficiency, and records, and develops treatment programs;

(3)  (U) Plans and prepares written treatment program;

(4)  (U) Administers manual exercises; instructs, motivates, and assists patient to perform various physical activities, including use of crutches, canes, and prosthesis;

(5)  (U) Administers treatments involving application of physical agents, using equipment such as hydrotherapy tanks and whirlpool baths, moist packs, ultraviolet and infrared lamps, ultrasound machines, massage techniques, and body physiology;

(6)  (U) Records and evaluates the effects of treatment at various stages and adjusts treatments to achieve maximum benefit, and may instruct patient and family in treatment procedures to be continued at home;

(7)  (U) Confers with physician and other practitioners to obtain additional patient information, suggests revisions in treatment program, and integrates physical treatment with other aspects of patient's healthcare;

(8)  (U) Instructs and directs work activities of assistants, aides, and students;

(9)  (U) Plans and conducts lectures and training programs on physical therapy and related topics for medical staff, students, and community groups;

(10) (U) May teach physical therapy techniques and procedures in educational institutions; and

(11) (U) May write technical articles and reports for publications; may plan, direct, and coordinate physical therapy program and be the designated director.

(12) (U) Physical therapist must comply with State requirement for licensure.

c.  (U) Occupational Therapist (Medical Service):

(1)  (U) Plans, organizes, and conducts occupational therapy programs in hospital, institution, or community settings to facilitate development and rehabilitation of mentally, physically, or emotionally handicapped individuals;

(2)  (U) Plans activities such as manual arts and crafts, practice in functional, prevocational, vocational and homemaking skills, and activities of daily living, and participation in sensorimotor, educational, recreational, and social activities to help patient or handicapped persons develop or regain physical and mental functioning;

(3)  (U) Consults and coordinates with other members of the rehabilitation team to select activity program consistent with needs and capabilities of the individual;

(4)  (U) Selects constructive activities suited to the individual's physical capacity, intelligence level, and interest;

(5)  (U) Prepares the individual for return to employment, assists in restoration of functions, and aids in adjustment to disability;

(6)  (U) Teaches individual skills and techniques required for participation in activities and evaluates individual progress; and

(7)  (U) May conduct, plan, direct, and coordinate training program and occupational therapy programs and be designated director, occupational therapy (Medical Service).

d. (U) Speech-Language Pathologist and Audiologist (Profess. & Kin) [Alternate Titles: Speech Clinician; Speech Therapist]:

(1)  (U) Specializes in diagnosis and treatment of speech and language problems, and engage in scientific study of human communication: diagnose and evaluate speech and language skills as related to educational, medical, social, and psychological factors;

(2)  (U) Plans, directs, or conducts habilitative and rehabilitative treatment programs to restore communicative efficiency of individuals with communication problems of organic and nonorganic etiology;

(3)  (U) Provides counseling and guidance and language development therapy to handicapped individuals;

(4)  (U) Administers, scores, and interprets specialized hearing and speech tests;

(5)  (U) Develops, implements, and monitors individualized plans for assigned clients to meet individual needs, interests, and abilities, using audio-visual equipment, such as tape recorders, overhead projectors, filmstrips, and other demonstrative materials;

(6)  (U) Reviews treatment plans and assesses individual performance to modify and change, or write new programs;

(7)  (U) Maintains records, establishment's policy, and administrative regulations as required by law;

(8)  (U) May act as consultant to educational, medical, and other professional groups, and serve as consultant to classroom teachers to incorporate speech and language activities into daily schedule;

(9)  (U) May teach manual sign language to students incapable of speaking and instruct staff in use of special equipment designed to serve handicapped.  See audiologist (Medical Service) 076.101-010 for one who specializes in diagnosis of rehabilitative services for auditory problems; and

(10) (U) Attends meetings and conferences and participate in other activities to promote professional growth.

e. (U) Medical Technologist (also known as Clinical Laboratory Scientists Service):

(1)  (U) Performs medical laboratory tests, procedures, experiments, and analyses to provide data for diagnosis, treatment, and prevention of disease and conduct chemical analyses of body fluids, such as blood, urine, and spinal fluid to determine presence of normal and abnormal components;

(2)  (U) Studies blood cells, their numbers, and morphology, using microscopic techniques;

(3)  (U) Performs blood group, type, and compatibility test for transfusion purposes;

(4)  (U) Analyzes test results and enters findings in computer;

(5)  (U) Engages in medical research under direction of the Medical Technologist, Chief (medical service) 078.161-010;

(6)  (U) May train and supervise students; and

(7)  (U) May specialize in areas such as hematology, blood-bank, serology, immunohematology, bacteriology, histology, or chemistry.

f.  (U) Medical-Laboratory Technician (Medical Service) [Alternate Titles:  Clinical Laboratory Technicians]:

(1)  (U) Performs routine tests in medical laboratory to provide data for use in diagnosis and treatment of disease;

(2)  (U) Conducts quantitative and qualitative chemical analyses of body fluid, such as blood, urine, and spinal fluid, under the supervision of medical technologist (Medical Service) 078.261-038;

(3)  (U) Incubates bacteria for specified period and prepares vaccines and serums by standard laboratory methods;

(4)  (U) Inoculates fertilized eggs, broths, or other bacteriological media with organism;

(5)  (U) Performs blood counts, using microscope; conducts blood tests for transfusion purposes;

(6)  (U) Prepares standard volumetric solutions and reagents used in testing;

(7)  (U) Tests vaccines for sterility and virus inactivity;

(8)  (U) May draw blood from patient’s finger, ear lobe, or vein, observing principles of asepsis to obtain blood samples; and

(9)  (U) May specialize in hematology, blood bank, cytology, histology, or chemistry.

g. Physician Assistant (Medical Service):

(1)  (U) Provides healthcare services to patients under the direction and responsibility of physician,  examines patient, performs comprehensive physical examination, and compiles patient medical data, including health history and results of physical examination;

(2)  (U) Administers or orders diagnostic tests, such as x-ray, electrocardiogram, and laboratory tests, and interprets test results for deviation from normal;

(3)  (U) Performs therapeutic procedures, such as injections, immunizations,  suturing, wound care, and managing infections;

(4)  (U) Develops, implements, records patient management plans, and assists provision of continuity of care; and

(5)  (U) Instructs and counsels patients regarding compliance with prescribed therapeutic regimens, normal growth and development, family planning, emotional problems of daily living, and health maintenance.

9 FAM 302.1-7(B)(2)  (U) Occupations to Which INA 212(a)(5)(C) Applies

(CT:VISA-160;   08-19-2016)

(U) The requirement of INA 212(a)(5)(C) has been interpreted to apply only to the following seven healthcare occupations:

(1)  (U) Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses;

(2)  (U) Physical Therapists;

(3)  (U) Occupational Therapists;

(4)  (U) Speech-language Pathologists and Audiologists;

(5)  (U) Medical Technologists (also known as clinical laboratory scientists);

(6)  (U) Medical Technicians (also known as clinical laboratory technicians; and

(7)  (U) Physician Assistants.

9 FAM 302.1-7(B)(3)  (U) Alternative Qualifications Under INA 212(r)

(CT:VISA-1349;   08-27-2021)

(U) In lieu of a certification under the standards of INA 212(a)(5)(C), an applicant nurse can present to you a certified statement from the CGFNS (or equivalent, independent credentialing organization approved for the certification of nurses) that:

(1)  (U) The applicant has a valid and unrestricted license as a nurse in a State where the applicant intends to be employed and that such State verifies that the foreign licenses of the applicant nurses are authentic and unencumbered;

(2)  (U) The applicant has passed the National Council Licensure Examination (NCLEX); and

(3)  (U) The applicant is a graduate of a nursing program that meets the following requirements:

(a)  (U) The language of instruction was English;

(b)  (U) The nursing program was located in a country which:

(i)     (U) Was designated by CGFNS no later than 30 days after the enactment of the NRDAA, based on CGFNS' assessment that designation of such country is justified by the quality of nursing education and English language proficiency;

(ii)    (U) Was designated based on an assessment by unanimous agreement of CGFNS and any equivalent credentialing organizations which the DHS has approved for the certification of nurses; and

(iii)    (U) The nursing program was in operation on or before November 12, 1999; or has been approved by unanimous agreement of CGFNS or any equivalent credentialing organizations, which the DHS has approved for certification of nurses.

9 FAM 302.1-7(B)(4)  (U) Health-care Workers Not Subject to INA 212(a)(5)(C)

(CT:VISA-1349;   08-27-2021)

a. (U) Other Healthcare Workers:  Any other health-care occupations that are not mentioned in 9 FAM 302.1-7(B)(2), above, such as chiropractors, dentists, dental technicians, dental assistants, acupuncturists, psychologists, nutritionists, medical teachers, medical researchers, managers of health-care facilities, medical consultants to the insurance industry, etc., will not be required to obtain certification requirements under INA 212(a)(5)(C) and their visa cases should, therefore, be processed to conclusion.

b. (U) Spouse or Dependent of Immigrant Applicant:  INA 212(a)(5)(C) specifically refers to applicants who are seeking to enter the United States under INA 203(b).  A dependent applicant admitted for the primary purpose of family unity whose occupation may be that of health-care worker is not subject to the provisions of INA 212(a)(5)(C).

c.  (U) Family-Sponsored Immigrant or Employment-Based Immigrant in a Non-Healthcare Occupation:  An applicant whose usual occupation is that of health care worker who is seeking permanent status as a family-sponsored immigrant or as an employment-based immigrant who will not be providing health-care services is not subject to INA 212(a)(5)(C). 

9 FAM 302.1-7(B)(5)  (U) Certification Authority Granted to Certain Organizations

(CT:VISA-160;   08-19-2016)

(U) DHS has published the final regulations relating to the credentialing of immigrants coming to the United States in all health-care occupations.  Nurses, occupational therapists, physical therapists, speech language pathologists and audiologists, medical technologists (also known as clinical laboratory scientists), medical technicians (also known as clinical laboratory technicians), and physician assistants, who have been certified by the Commission on Graduates of Foreign Nursing Schools (CGFNS), as well as occupational therapists certified by the National Board for Certification in Occupational Therapy (NBCOT), and physical therapists certified by the Foreign Credentialing Commission on Physical Therapy (FCCPT), may obtain immigrant visas, if otherwise qualified.

9 FAM 302.1-7(B)(6)  (U) Qualifying as an Immigrant Health-care Worker

(CT:VISA-1349;   08-27-2021)

a. (U) An applicant who wishes to immigrate to the United States to perform in a health-care occupation must be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, and must be certified by the CGFNS, the NBCOT, or the FCCPT.  

b. (U) Certification by these organizations is evidence that the applicants have satisfied the requirements of section 343 of Public Law 104-208, including a passing score on the appropriate English language examination.  

c.  (U) If, however, the personal interview reveals an obvious lack of appropriate English language proficiency or appropriate knowledge of the certified healthcare field, you should submit the case to L/CA for an AO.  An approved certificate does not excuse the applicant from all the other relevant statutory and regulatory requirements for visa issuance.

9 FAM 302.1-7(B)(7)  (U) Validity of Certificates Issued by Commission on Graduates of Foreign Nursing Schools (CGFNS), National Board for Certification in Occupational Therapy (NBCOT), and Foreign Credentialing Commission on Physical Therapy (FCCPT)

(CT:VISA-160;   08-19-2016)

(U) Certificates issued by CGFNS, NBCOT, and FCCPT must be valid at the time of visa issuance and at the time for any admission into the United States or change of status within the United States.  Individual’s certification or certified statement must be used within five years of the date that it was issued.

9 FAM 302.1-7(B)(8)  (U)  English Proficiency Requirements

(CT:VISA-1349;   08-27-2021)

a. (U) In General:  INA 212(a)(5)(C)(ii) gives the Secretary of Health and Human Services, in consultation with the Secretary of Education, the sole authority to set the level of competence in oral and written English appropriate for all health care fields in which the applicant will be engaged.  Individuals who seek to meet the English language requirements will be required to do one of the English language tests mentioned in 9 FAM 302.1-7(B)(8) paragraph c.

b. (U) General Exemption for Certain Individuals:  According to 8 CFR 212.15(g)(2), applicants who have graduated from a college or university of professional training school located in Australia, Canada (except Quebec), Ireland, New Zealand, the United Kingdom, and the United States, are exempt from the English language requirement. 

c.  (U) Approved English Language Tests for Certain Healthcare Workers:  The HHS has approved the following tests as acceptable English language testing systems for health care workers certification in certain occupations:

(1)  (U) Educational Testing Service (ETS);

(2)  (U) Test of English in International Communication (TOEIC) Service International; and

(3)  (U) International English Language Testing System (IELTS).

d. (U) Passing English Test Scores for Certain Healthcare Occupations: 

(1)  (U) Occupational and physical therapists:  An applicant seeking to join the labor force in the United States as an occupational or physical therapist must pass a test administered by ETS.  The certifying organizations shall not accept the results of the TOEIC or the IELTS tests.  The applicant must obtain the following scores on the English tests administered by ETS:

(a)  (U) Test of English as a Foreign Language (TOEFL);

(b)  (U) Paper-Based 560;

(c)  (U) Computer-Based 220;

(d)  (U) Test of Written English (TWE): 4.5; and

(e)  (U) Test of Spoken English: 50.

(2)  (U) Registered nurses and other health care workers requiring the attainment of a baccalaureate degree:  An applicant coming to the United States to perform labor as a registered nurse (other than a nurse presenting a certified statement under 212 (r) of the Act) or to perform labor in another health care occupation requiring a baccalaureate degree (other than occupational or physical therapy) must obtain one of the following combinations of scores to obtain a certificate:

(a)  (U) ETS:  TOEFL: Paper-Based 540, Computer-Based 207, TWE: 4.0; TSE: 50;

(b)  (U) TOEIC Service International:  TOEIC: 725; plus TWE: 4.0 and TSE: 50; or

(c)  (U) IELTS:  6.5 overall with a spoken band score of 7.0.  This would require the academic module.

(3)  (U) Occupations requiring less than a baccalaureate degree:  An applicant coming to the United States to perform labor in a health care occupation that does not require a baccalaureate degree must obtain one of the following combinations of scores to obtain a certificate:

(a)  (U) ETS:  TOEFL:  Paper-based 530, computer-Based 197; TWE: 4.0; TSE; 50;

(b)  (U) TOEIC Service International:  TOEIC: 700; plus TWE 4.0 and TSE: 50; or

(c)  (U) IELTS:  6.0 overall with a spoken band score of 7.0.  This would allow either the academic or the General module.

9 FAM 302.1-7(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020)

(U) If the personal interview reveals an obvious lack of appropriate English language proficiency or appropriate knowledge of the certified healthcare field, submit the case to L/CA for an AO.  An approved certificate does not excuse the applicant from all the other relevant statutory and regulatory requirements for visa issuance.

9 FAM 302.1-7(D)  (U) Waivers

9 FAM 302.1-7(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)

(U) No waiver is available, but this can be overcome.

9 FAM 302.1-7(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) To ensure that health-care facilities remain fully staffed, DHS and the Department have agreed to exercise blanket waiver authority under INA 212(d)(3)(A) for nonimmigrants and temporarily waive the certification requirement until July 26, 2004.  On and after July 26, 2004, discretion must be applied on a case-by-case basis.  This waiver also applies to Canadians seeking admission in Trade NAFTA (TN) status.  Health-care workers who receive waivers for INA 212(a)(5)(C) ineligibilities should be issued visas limited to a single entry with six-month validity.

9 FAM 302.1-7(E)  Unavailable

9 FAM 302.1-7(E)(1)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-7(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-8  (U) Failure of Application to Comply with INA - INA 221(g)

9 FAM 302.1-8(A)  (U) Grounds

(CT:VISA-1349;   08-27-2021)

(U) No visa or other documentation shall be issued to an applicant if the visa application fails to comply with the provisions of the INA or implementing regulations.

9 FAM 302.1-8(B)  (U) Application

(CT:VISA-1366;   09-15-2021)

a. (U) Refusal Under INA 221(g):  You may refuse an applicant's visa application under INA 221(g)(2) as failing to comply with the provisions of INA or the implementing regulations if:

(1)  (U) The applicant fails to furnish information as required by law or regulations;

(2)  (U) The application contains a false or incorrect statement other than one which would constitute a ground of ineligibility under INA 212(a)(6)(C);

(3)  (U) The application is not supported by the documents required by law or regulations;

(4)  (U) The applicant refuses to be fingerprinted as required by regulations;

(5)  (U) The necessary fee is not paid for the issuance of the visa or, in the case of an immigrant visa, for the application therefor;

(6)  (U) The application otherwise fails to meet specific requirements of law or regulations for reasons for which the applicant is responsible.

b. (U) Reconsideration of Refusals:  A refusal of a visa application under paragraph (a)(1) of this section does not bar reconsideration of the application upon compliance by the applicant with the requirements of INA and the implementing regulations or consideration of a subsequent application submitted by the same applicant.

c.  (U) A refusal under INA 221(g) is, legally, a refusal on a visa application, even if that refusal is eventually overcome.  

d. Unavailable

9 FAM 302.1-8(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020) 

(U) An AO is not required for a potential INA 221(g) refusal; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from L/CA. 

9 FAM 302.1-8(D)  (U) Waiver

9 FAM 302.1-8(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016) 

(U) There is no waiver available under 221(g).  However, see 9 FAM 306.2-2(A) for information on overcoming an INA 221(g) refusal.

9 FAM 302.1-8(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-160;   08-19-2016)

(U) There is no waiver available under 221(g).  However, see 9 FAM 306.2-2(A) for information on overcoming an INA 221(g) refusal.

9 FAM 302.1-8(E)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

9 FAM 302.1-9  (U) Applicants Subject to INA 222(g)

9 FAM 302.1-9(A)  (U) Grounds

(CT:VISA-160;   08-19-2016)

(U) INA 222(g) renders void the visas of nonimmigrants who remain in the United States "beyond the period of stay authorized by the Secretary of Homeland Security.”

9 FAM 302.1-9(B)  (U) Application

9 FAM 302.1-9(B)(1)  (U) In General

(CT:VISA-1349;   08-27-2021)

a. (U) In General:  INA 222(g) applies only to applicants:

(1)  (U) Admitted on an NIV; and

(2)  (U) Who remained beyond the period of authorized stay (see 9 FAM 302.1-9(B)(1) paragraph c below).  Also, see Summary of INA 222(g) Scenarios for examples of when INA 222(g) would or would not apply at 9 FAM 302.1-9(B)(6) below.

b. (U) Admission of Nonimmigrant Visa:   INA 222(g) does not apply to applicants:

(1)  (U) Who entered the United States on the Visa Waiver Program (VWP) (or some other type of visa waiver);

(2)  (U) Who entered via parole;

(3)  (U) Who entered without inspection;

(4)  (U) Who entered through one of the 'diplomatic visa' categories;

(5)  (U) Who entered through any other means, other than on an NIV;

(6)  (U) Who were admitted from Canada or Mexico with an I-68 or DSP-150 Border crossing card, or any other Canadian or Mexican entrants to the United States who were not issued an I-94 (and who were not later formally found to be out of status by USCIS, an immigration judge (IJ) or the Board of Immigration Appeals (BIA).); or

(7)  (U) Who physically could not depart the United States due to the fact that they were in custody of law enforcement at the time (in prison, for example), see Matter of C-C-, 3 I&N Dec.221, 222 (BIA 1948).

c.  (U) Remaining Beyond Period Authorized by the Secretary of Homeland Security: 

(1)  (U) In General: Under INA 222(g), an applicant who entered the United States on an NIV will be considered to have overstayed their period of authorized stay if:

(a)  (U) They remained in the United States beyond the specific date stated on the Form I-94, Arrival-Departure Record; or

(b)  (U) USCIS, an IJ, or the BIA has formally found that they violated their status.

(2)  (U) Applicants Admitted Until Date Certain:  Applicants admitted on "B" visas and most other visa categories are granted a specified period of stay and must depart on or before the date specified on the Form I-94.  An applicant who departs by the date indicated on the Form I-94 would not be ineligible under INA 222(g), unless the USCIS, an IJ, or the BIA actually makes a finding of a status violation before such departure. 

(3)  (U) Applicants Admitted for Duration of Stay:  Although most nonimmigrants are admitted to the United States for a specified period of time, some applicants are admitted for "duration of status."  An applicant who has been admitted to the United States for "duration of status" is ineligible under INA 222(g) only if:

(a)  (U) USCIS finds a status violation while adjudicating a request for an immigration benefit; or

(b)  (U) An IJ finds a status violation in proceedings against the applicant.  In determining whether INA 222(g) applies, your assessment of whether the applicant did or did not maintain lawful status is irrelevant.

(4)  (U) Applicants with Pending Change of Status or Extension of Status Applications:   An applicant is not ineligible under INA 222(g) even though the departure date on Form I-94, Arrival-Departure Record, passes, if:

(a)  (U) The applicant files a timely application for extension of stay or for a change of status; and

(b)  (U) The application is approved.  In addition, if an applicant departs after the date on the Form I-94 passes, but before their application for extension or change of status has been decided by USCIS, they must be subject to a blanket exemption from INA 222(g), if the application was filed in a "timely manner" and is "nonfrivolous" in nature.  You may consider an application nonfrivolous if it is not, on its face, a groundless excuse for the applicant to remain in the United States to engage in activities incompatible with their status.  Posts may be satisfied that an applicant filed in a timely manner using evidence such as a record in USCIS Person Centric Query Service (PCQS) or the dated receipt or canceled check from USCIS for the payment of the application fee to extend or change status together with evidence of the expiration of the applicant's legal status.

(c)  (U) Nonimmigrants admitted D/S (Duration of Stay) who leave the United States while the extension of stay or change of status application is pending, are not subject to INA 222(g), if no status violation was found that would have resulted in the termination of the period of stay authorized.  In addition, D/S nonimmigrants whose extension of stay or change of status applications were denied for reasons other than a status violation are not subject to INA 222(g).

(5)  (U) Applicants Granted Voluntary Departure:  An individual who stays beyond the date indicated on their Form I-94, or an individual who is found by DHS, an IJ, or the BIA to have violated their status, is subject to INA 222(g), even if they are simultaneously or later granted voluntary departure.  This remains true even though they would not be "unlawfully present" under INA 212(a)(9)(B) during the period granted for voluntary departure (VD). 

9 FAM 302.1-9(B)(2)  (U) Requirement to Obtain Future Visas in Country of Nationality INA 222(g)(2)

(CT:VISA-1349;   08-27-2021)

a. (U) In General: 

(1)  (U) An applicant who has overstayed the authorized period of admission may no longer use the visa with which they entered the United States.  To re-enter the United States, the applicant must obtain a new NIV in the country of the applicant’s nationality.  If an applicant is in possession of two valid visas, however, only the visa used by the applicant to enter the United States (i.e., the visa which is the subject of the overstay finding) is void under INA 222(g).  

(2)  (U) The combination B-1/B-2 NIV/BCCs are subject to INA 222(g) and become automatically void when the applicant remains in the United States beyond the authorized admission date.  Combination B-1/B-2 NIV/BCCs that have become automatically void under INA 222(g) must be physically canceled.  (See 9 FAM 302.1-9(B)(5))  BCCs, however, as defined in INA 101(a)(26) are not nonimmigrant visas per se, and do not become automatically void under INA 222(g) when the applicant remains in the United States beyond the period of authorized stay.

b. (U) "Homeless" Cases:  Where there is no consular office in the country of the applicant's nationality, an applicant subject to INA 222(g) may apply for a new visa at either:

(1)  (U) A consular office designated by the Department to accept the IV application of such applicant regardless of whether they have  filed such application (see 9 FAM 504.4-8(E)); or

(2)  (U) A post in the country in which the applicant has the right of permanent residence.

c.  (U) Applicants with Dual Nationality:  An applicant who possesses more than one nationality and who has, or immediately prior to the applicant's last entry into the United States had, a residence in one of the countries of the applicant's nationality must apply at a consular office in the country of such residence. 

d. (U) "Stateless" Applicants:  An applicant determined by you to be "stateless," shall, under INA 222(g), be treated like  a national of the country that issued the applicant's travel documentation. 

e. (U) Applicants Benefitting from the Extraordinary Circumstances Exemption:  

(1)  (U) In General:

(a)  (U) An applicant subject to INA 222(g) may be exempted from the requirement of applying for future NIVs in their country of nationality, if the Department finds that "extraordinary circumstances" exist.

(b)  (U) The Department's regulation at 22 CFR 41.101(d)(1) defines "extraordinary circumstances" as circumstances where compelling humanitarian or national interests exist or where necessary for the effective administration of the immigration laws.

(c)  (U) Extraordinary circumstances shall not be found based on convenience or financial burden to the applicant, the applicant's relative, or the applicant's employer.

(2)  (U) Physicians Serving in Under-Served Area:  The Department has determined that "extraordinary circumstances" exist for an applicant physician serving in an under-served area of the United States under INA 214(l) for whom an application for a waiver of the two-year foreign residence requirement of INA 212(e) and/or a petition to accord H-1B status was filed prior to the end of the applicant's authorized stay and was  approved, but whose authorized stay expired during the adjudication of such application(s). 

(3)  (U) Applicant with Residence in Third Country:  An applicant subject to INA 222(g) whose current foreign residence is in a country other than the country of their nationality, should be considered to be applying under "extraordinary circumstances" if they apply for a visa at a post in the country of their current residence rather than in their country of nationality. 

(4)  (U) Applicant Applying for Diplomatic Visa:  INA 102 limits the applicability of provisions of the INA relating to ineligibilities to certain classes of nonimmigrants.  The classes include the nonimmigrant categories A-1, A-2, G-1 through G-4, and NATO-1 through NATO-6; i.e., the “diplomatic visa” categories.  Generally, applicants in these categories must, therefore, be exempted from the reapplication provisions of INA 222(g).  If, however, they are formally found by USCIS to have committed a status violation while USCIS was adjudicating a request for an immigration benefit or an IJ or the BIA finds a status violation in proceedings against the applicant, then they should be subject to INA 222(g)

(5)  (U) Extraordinary Circumstance Findings in Individual Cases:   Upon the favorable recommendation of an immigration or consular officer, if the Deputy Assistant Secretary for Visa Services determines that extraordinary circumstances exist, an applicant or group of applicants may be exempted from the requirements of INA 222(g).  (See 9 FAM 302.9-9(C))

f.  (U) Individual Exceptions:  Applicants not eligible for the blanket 222(g)(2)(B) extraordinary circumstances exception may seek the exception on a case-by-case basis.  If it appears to you that compelling humanitarian or national interests may exist or that an exception may be necessary for the effective administration of the immigration laws, you have the discretionary authority to recommend to the Deputy Assistant Secretary for Visa Services (VO DAS) that exceptional circumstances be found in the individual case.  In determining whether to make a favorable recommendation to the VO DAS, keep in mind that extraordinary circumstances shall not be found based on convenience or financial burden to the applicant, the applicant's relative, or the applicant's employer.  If the VO DAS determines that extraordinary circumstances exist, an individual exception will be granted.

(1)  (U) When INA 222(g)(2)(B) exception is granted:  When a nonimmigrant visa is issued to a third country applicant based on the extraordinary circumstances exception in INA 222(g)(2)(B) (blanket or individual exception), the new visa is to be annotated “INA 222(g) overcome under extraordinary circumstances.”  This annotation indicates that INA 222(g) was overcome and that the applicant was allowed to apply for the nonimmigrant visa in a third country; or

(2)  Unavailable

9 FAM 302.1-9(B)(3)  Unavailable

(CT:VISA-1349;   08-27-2021)

a. Unavailable  

(1)  Unavailable

(2)  Unavailable

b. Unavailable

9 FAM 302.1-9(B)(4)  (U) Annotating the Visa

(CT:VISA-1349;   08-27-2021)

(U) Nonimmigrant visas (NIV) issued to applicants exempted from INA 222(g) under extraordinary circumstances should be annotated:

INA 222(g) overcome where extraordinary circumstances are found by the Secretary of State to exist.

9 FAM 302.1-9(B)(5)  (U) Refusal and Fee Retention

(CT:VISA-1349;   08-27-2021)

(U) If you determine that an applicant is ineligible for a visa under INA 222(g):

(1)  (U) The visa on which the overstay occurred should be physically cancelled (if it is still valid);

(2)  (U) The applicant should be advised, in writing, that they have been determined to be ineligible under INA 222(g) and must apply for a visa in their country of nationality;

(3)  Unavailable

(4)  (U) The MRV fee should be retained.

9 FAM 302.1-9(B)(6)  (U) Summary of INA 222(g) Scenarios

(CT:VISA-1349;   08-27-2021)

 
CATEGORY

Subject to INA 222(g)

Not Subject to INA 222(g)

Applicant admitted until specified date; maintains status; departs by date specified.

 

Not Subject

Applicant admitted until specified date; maintains status; departs after date specified.

Subject

 

Applicant admitted until specified date; violates status; departs by date specified.

 

Not Subject

Applicant admitted until specified date; violates status; departs by date specified, but is found by USCIS, an IJ, or the BIA to have violated status.

Subject

 

Applicant admitted until specified date; violates status; departs after date specified.

Subject

 

Applicant admitted until specified date; stays beyond specified date; but granted voluntary departure (V/D).

Subject

 

Applicant admitted until specified date, found by USCIS, an IJ, or the BIA to have violated status but is granted V/D; departs prior to both date on Form I-94, Arrival-Departure Record and date specified in V/D order.

Subject

 

Applicant admitted for duration of status (D/S), maintains status and departs.

 

Not subject

Applicant admitted for (D/S), violates status (not found in violation by USCIS, an IJ or the BIA).

 

Not subject

Applicant admitted for (D/S), found by USCIS or IJ in violation of status.

Subject

 

Applicant admitted for (D/S), found by DHS an IJ, or the BIA in violation of status, granted voluntary departure.

Subject

 

Applicant admitted until specified date; applies for extension or change of status within applicable time limit prior to expiration of Form I-94; remains in U.S. after date on Form I-94; and application is approved.

 

Not Subject

Applicant admitted until specified date; applies in timely fashion for extension or change of status, remains in U.S. after date on I-94 and application is denied.

Subject

 

Applicant admitted for D/S; applies in timely fashion for extension or change of status; application is denied for reasons other than status violation.

 

Not Subject

Applicant admitted until specified date; submits a timely and non-frivolous application for extension or change of status; departs U.S. after expiration of Form I-94, but before a decision on the Form I-94 extension/change of status application.

 

Not Subject

Applicant admitted until specified date; files late application for change or extension of status; USCIS accepts late application because applicant established that filing was for good cause and otherwise satisfies the requirements for retroactive application; and application is ultimately approved:

 

Not Subject

Applicant entered on Visa Waiver Program (VWP), on parole, without inspection, or otherwise without nonimmigrant visa, (NIV) regardless of whether applicant overstays or violates status.

 

Not Subject

9 FAM 302.1-9(C)  (U) Advisory Opinions

(CT:VISA-1150;   09-14-2020)

a. (U) If posts are unsure whether an applicant is subject to INA 222(g), or if posts have questions as to whether “extraordinary circumstances” exist for a favorable recommendation for an exemption from INA 222(g), you may request an AO from your adviser in L/CA. 

b. (U) If you believe that “extraordinary circumstances” do exist, you must request an AO from L/CA for approval of an exception to 222(g). In the AO, you must articulate your findings as to why extraordinary circumstances exist.  L/CA will not render an AO on an "extraordinary circumstances" request unless the applicant has been found subject to INA 222(g).

9 FAM 302.1-9(D)  (U) Waiver

9 FAM 302.1-9(D)(1)  (U) Waivers for Immigrants

(CT:VISA-160;   08-19-2016)  

(U) INA 222(g) is not applicable to immigrant visa applicants.

9 FAM 302.1-9(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1349;   08-27-2021)

(U) No waiver is available.  See 9 FAM 302.1-9(B)(2) paragraph e above for examples of applicants benefitting from the extraordinary circumstances exception.

9 FAM 302.1-9(E)  Unavailable

9 FAM 302.1-9(E)(1)  Unavailable

(CT:VISA-1201;   01-11-2021)

Unavailable

9 FAM 302.1-9(E)(2)  Unavailable

(CT:VISA-160;   08-19-2016)

Unavailable

 

 

 

UNCLASSIFIED (U)