9 FAM 403.2
NIV Application
(CT:VISA-1949; 03-13-2024)
(Office of Origin: CA/VO)
9 FAM 403.2-1 Related Statutory and regulatory Authorities
9 FAM 403.2-1(A) Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
INA 101(a)(33) (8 U.S.C. 1101(a)(33)); INA 221(b) (8 U.S.C. 1201(b)); INA 222(c) (8 U.S.C. 1202(c)); INA 222(e) (8 U.S.C. 1202(e)).
9 FAM 403.2-1(B) Code of Federal Regulations
(CT:VISA-1; 11-18-2015)
22 CFR 41.101; 22 CFR 41.103; 22 CFR 41.106.
9 FAM 403.2-2 Nonimmigrant visa APPLICATION
(CT:VISA-1712; 02-28-2023)
You must take all necessary administrative steps to preserve the integrity of the NIV process, protect U.S. national security, and facilitate legitimate travel to the United States. You should ensure that NIV procedures are as simple and clear as possible, consistent with effective administration of existing laws and regulations. Consular sections should regularly review their procedures and revise workflow to adapt to changing conditions. You should give every applicant prompt and courteous service.
9 FAM 403.2-3 Definition of "Making a Visa Application"
(CT:VISA-1949; 03-13-2024)
a. For an NIV applicant, "making a visa application" requires the applicant to complete three components:
(1) Complete and submit a Form DS-160 for formal adjudication by a consular officer, signed electronically by clicking the box designated "Sign Application" in the certification section of the application;
(2) Pay the required application fee (also known as the MRV application fee) or provide evidence of prior payment of the application processing fee, unless the applicant is exempt from paying the MRV fee (see 9 FAM 403.4-3); and
(3) Provide all required biometric data. Biometric data is not complete until a photograph has been submitted and fingerprints, if required, have been collected. Fingerprints that have been collected by a locally employed staff member or collected off-site by a contractor meet this standard, even if they have not been verified by a cleared American.
b. Applicants who have submitted a photograph and who have ten fingerprints on file from a previous application have provided all required biometric data. Applicants who have two fingerprints on file from a previous application, and who have been ten-printed by a contractor for verification via IDENT, have supplied the required biometric information.
c. When an applicant explicitly refuses to provide fingerprints, per 9 FAM 302.1-8(B) (22 CFR 40.201), you must refuse the application under INA 221(g). This situation is not the same as a mere failure to appear, or "no show."
d. Do not pre-screen or perform other work on a visa case until after the required visa application fee has been paid unless entry of a lookout is appropriate per 9 FAM 303.3-4(B). If the applicant has made an application as defined above, but fails to pay a reciprocity fee, you must refuse the application under INA 221(g) per 9 FAM 302.1-8(B). See also 22 CFR 40.201.
9 FAM 403.2-4 Place of Application
(CT:VISA-1831; 09-20-2023)
a. In General:
(1) As described below, you must accept an NIV application in either of two circumstances: the applicant is a resident of your consular district; or the applicant is physically present in your consular district. You should also accept an NIV application if the Department directs you to accept it.
(2) The applicant usually should make an application for an NIV in the consular district in which they reside. See 9 FAM 403.2-4(B) below about applicants physically present but not resident in a consular district.
b. Diplomatic and Official Type Visas:
(1) Diplomatic Type: Consistent with 22 CFR 41.26(b), which states that “…application for a diplomatic [type] visa shall be made at a diplomatic mission or at a consular office authorized to issue diplomatic visas, regardless of the nationality or residence of the applicant,” applicants for diplomatic type visas can apply at any post regardless of nationality or residence of the applicant. Additionally, in accordance with 9 FAM 403.2-4(C) paragraph b, certain diplomatic type applicants applying for a visa classification eligible for interview waiver under 22 CFR 41.102(b)(1), may apply without being either resident or physically present.
(2) Official Type: This rule does not apply to official type visas for which you should follow the rules described above at 9 FAM 403.2-4 paragraph a.
(3) Additional Information: See 9 FAM 402.3-10(C) for general guidance on eligibility for diplomatic type visas and 9 FAM 402.3-5(B)(2) for guidance on the difference between visa classification and visa type.
9 FAM 403.2-4(A) Applicant Who is Resident in a Consular District
(CT:VISA-1949; 03-13-2024)
a. 22 CFR 41.101 requires that you accept an application from a visa applicant resident in your consular district, even though the applicant may be absent from that district at the time of application. The regulatory language does not specifically require an applicant with a place of residence in the district to be physically present in the district nor does it restrict the applicant’s presence to a particular location at the time of application.
b. Residence: “Residence” is defined in INA 101(a)(33) as the applicant’s “place of general abode; the ... principal, actual dwelling place in fact, without regard to intent.” In other words, it is the place where the applicant in fact lives and under most common circumstances from which they conduct their life. It is not necessarily the place where the applicant is physically located at any given moment.
9 FAM 403.2-4(B) Applicant Who is Physically Present but Not Resident in a Consular District
(CT:VISA-1553; 06-02-2022)
22 CFR 41.101(a) gives you the discretion to permit an applicant who is physically present in your consular district to apply for an NIV outside their resident district. While 22 CFR 41.101(a) gives you discretionary authority to reject applications by persons who are physically present in but not residents of the consular district, we expect that such authority will seldom, if ever, be used.
9 FAM 403.2-4(B)(1) Physical Presence
(CT:VISA-1380; 09-29-2021)
“Physical presence” constitutes the fact of being in a place at a given moment. This is a factual state or condition. “Physical presence” differs from “residence” in that “residence” is the location of a person’s general abode, whereas “physical presence” is the location of the person at the given time. Thus, although the applicant’s general abode may be located in one place, the applicant may be physically present in another.
9 FAM 403.2-4(B)(2) Refusals of Out-of-District Applicants
(CT:VISA-1380; 09-29-2021)
For refusals concerning out-of-district applicants, see 9 FAM 403.10-2(B)(2).
9 FAM 403.2-4(C) Applicant Who is Neither Resident nor Physically Present in a Consular District
(CT:VISA-1831; 09-20-2023)
a. Except for diplomatic type visas as described below at 9 FAM 403.2-4(C) paragraph (b), the provisions of 22 CFR 41.101(a) preclude acceptance or processing of an NIV application when the applicant is neither a resident of nor physically present in the consular district at the time of application. You may not accept an application from, or issue an NIV to, such an applicant (other than certain diplomatic type applicants described below at 9 FAM 402.2-4(C) paragraph b), nor may you issue an NIV at an overseas post to an applicant who is physically present in the United States.
b. You may accept an NIV application from an applicant who is neither resident nor physically present in a consular district ONLY for an applicant who both meets the eligibility requirements for a diplomatic type visa described at 9 FAM 402.3-10(C)(1) and who is also applying for a classification eligible for waiver of the personal appearance/interview requirement under 22 CFR 41.102(b)(1) as described at 9 FAM 402.3-4(E). Thus, a diplomatic type applicant for an A-1, A-2, C-2, C-3 (except domestic workers), G-1 through G-4, and NATO-1 through NATO-6 – the visa categories which do not require a personal appearance or interview under 22 CFR 102(b)(1) - is not required to be either resident or physically present to make an application. However, in accordance with guidance at 9 FAM 402.3-4(E) paragraph b, you may in your discretion request such applicants to appear for an interview at the consulate or embassy where the application was filed. You should contact Diplomaticvisas@state.gov and Legal-CA-diplomaticvisas@state.gov if you have questions about whether you can accept an NIV application from a diplomatic type visa applicant in one of the visa classifications described above.
9 FAM 403.2-4(D) Redesignating Consular Posts
(CT:VISA-1553; 06-02-2022)
The Deputy Assistant Secretary for Visa Services may designate the geographical areas over which consular sections have jurisdiction to process NIVs. This, however, does not affect an applicant’s ability to apply for a NIV at any NIV issuing consular section within their country of residence. Department approval, however, is necessary before countries with multiple visa-issuing consular sections can make changes to NIV application policy. A cable, captioned for CA/VO/F, requesting approval of such authority, and outlining the country-wide plan should be made by the supervisory consular officer in the country.
9 FAM 403.2-5 Nonimmigrant Visa Application Forms
9 FAM 403.2-5(A) Nonimmigrant Visa Application Forms
(CT:VISA-1712; 02-28-2023)
a. Form DS-160, Online Nonimmigrant Visa Application, is the application form prescribed under INA 222. Form DS-160 is available to the public at Consular Affairs’ Consular Electronic Application Center (CEAC).
(1) The Form DS-160 is a completely electronic nonimmigrant visa application that includes an electronic signature, replacing the paper DS-156.
(2) All information entered into Form DS-160 is available to you at the time of the interview.
b. If the Form DS-160 is unavailable and one of the following conditions has been met, you may accept alternate paper forms. You must scan in the paper forms into the NIV case:
(1) An applicant has urgent medical or humanitarian travel, and you have explicit permission from your CA/VO/F visa analyst;
(2) The applicant is a student or exchange visitor who must leave immediately to arrive on time for their program and you have explicit permission from your CA/VO/F visa analyst;
(3) The applicant is a diplomatic or official traveler with urgent government business and the DS-160 has been unavailable for more than four hours; or
(4) The DS-160 has been unavailable for more than three days and you have explicit permission or general guidance from CA/VO/F.
c. If you accept a paper-based visa application form pursuant to paragraph (b) above, you must follow the instructions on the retention and disposition of NIV forms in 9 FAM 601.6-2.
9 FAM 403.2-5(B) Completion and Use of Application Forms
9 FAM 403.2-5(B)(1) Information to Include on Visa Application Forms
(CT:VISA-1949; 03-13-2024)
a. Information to be Supplied by Applicant: Form DS-160, Online Nonimmigrant Visa Application is the application form prescribed under INA 222(c). All items on Form DS-160, must be completed in English, unless otherwise noted on the form.
b. Applicant’s Names:
(1) An applicant’s first, middle, and family names should be recorded throughout Form DS-160 exactly as they appear in the applicant’s passport. In addition, the application must include any other names by which the applicant has ever been known; for example, maiden, religious, or professional name, or aliases. The applicant’s name must also be provided not only in English phonetics but also in the native linguistic characters; that is, Chinese, Arabic, etc., if required for clearances.
(2) In certain cultures, an applicant may not have a first name, but only a surname. In such cases refer to 9 FAM 403.9-2(A).
c. Submitting Photograph with NIV Applications: The applicant will either electronically upload a picture file into Form DS-160 or have their photo taken when the applicant submits to biometric collection at an Applicant Service Center. Applicants who are unsuccessful in uploading a photo may submit a physical photo to the consular section.
d. Electronic Record: In addition to information concerning the issuance or refusal of the visa, the electronic record of the visa application in the NIV system includes the following information:
(1) Record of clearances obtained, including the dates;
(2) Record of revocation and cancellation of visa;
(3) Any further information which would be helpful in reaching a decision if the applicant reapplies for a visa; and
(4) Record of re-issuance of visa (in the event a previous visa is spoiled or cancelled).
e. You must enter electronic comments for each refusal, so that the case record contains an indication of the evidence that led you to refuse the visa. You should enter case notes for issued visas to provide information about purpose of travel for ports of entry, public inquiries, fraud investigations, etc. See also 9 FAM 403.9-2(B), Visa Issuance Case Notes.
f. Passports that do not list male or female: The sex reflected on any issued visa should match the sex reflected on the passport produced by an issuing authority. In those instances where a passport does not list a “male” or “female” field, the applicant must select either male or female for visa issuance.
9 FAM 403.2-5(B)(2) Applicant Unable to Complete the Application
(CT:VISA-1831; 09-20-2023)
a. If the applicant is illiterate or unable to complete the application, the applicant must be assisted by a third party. The third party must be identified in the application. The third party can assist the applicant in completing the application but must instruct the applicant on how to endorse and electronically sign the application on their own behalf by clicking on the “submit application” link to complete the application.
b. If the applicant is under the age of 16 or physically incapable of completing an application, the applicant’s parents or guardian may execute the application on their behalf. If the applicant has no parent or legal guardian, the application may be completed by any person having legal custody of, or a legitimate interest in, the applicant.
9 FAM 403.2-5(C) Translating Visa Forms
(CT:VISA-1712; 02-28-2023)
a. Form DS-160 is available to the public at Consular Affairs’ Consular Electronic Application Center and at CA's travel website and is translated into most common foreign languages, including Arabic, Bangla, Simplified Character Chinese, Traditional Character Chinese, French, German, Hebrew, Hindi, Indonesian, Italian, Japanese, Korean, Montenegrin, Persian Farsi, Polish, Portuguese, Romanian, Russian, Spanish, Thai, Turkish, Urdu, and Vietnamese.
b. Other Translations: Consular sections may provide an information sheet in local language(s) to assist applicants in completing the DS-160. Information sheets must be accurate, and the layout must look as much like the English version of the DS-160 as possible. Department approval is not required for translation; however, consular sections must forward a copy of the translation to the Office of Field Operations (CA/VO/F). If you believe that a tool-tip translation should be available, you must submit a written request to CA/VO/F detailing the need for the translation.
9 FAM 403.2-6 Managing Applications from Previously Refused Applicants
9 FAM 403.2-6(A) Limiting Applications from Previously Refused Applicants
(CT:VISA-1712; 02-28-2023)
a. You may not institute a procedure requiring applicants recently refused visas to submit new applications outside of the ordinary application process. Such procedures interpose an unnecessary step in the visa process that does not result in a visa adjudication and for which no fees are collected.
b. Applicants who have previously been refused under INA 214(b) may reapply at any time. Applicants who are reapplying must follow the same steps as first-time applicants: paying the MRV fee; submitting a new visa application form and photo; having their biometric data taken; and being interviewed by a consular officer.
c. Consider the following strategies to manage workload from previously refused applicants:
(1) Ensure that you are collecting MRV fees according to policy. An INA 214(b) refusal is a final adjudication. Using INA 221(g) to avoid decisions or hold open the possibility for reapplication invites abuse. You must require a new application and a new fee for reconsideration.
(2) Stress NIV classification statutory requirements and explain 214(b) during outreach, explaining that U.S. immigration law uses the term “immigrant” to describe those not eligible for a “nonimmigrant status” described in INA 101(a)(15). That means that for NIV adjudication, “immigrant” means convicted felon, narcotics trafficker, unauthorized employment, etc. as well as immigrant. Dispel the notion that there is an element of luck in visa processing and that applicants may be lucky the following week and be issued a visa. Emphasize the importance of facts.
(3) Use the appointment system to triage previously denied applicants by limiting the number of slots for them.
(4) Alternatively, schedule previously refused applicants on only a few days a month or during traditionally lower-volume times of the year (e.g., not during Summer Work Travel season or pre-holiday peak seasons). You must emphasize to line officers, however, the importance of making clear to applicants that they may reapply if they believe that they genuinely qualify since there is no formal appeal of an NIV refusal. Efforts to control previous refusals must not unduly restrict applicants’ ability to reapply.
(5) Review line officers’ interviewing techniques and emphasize the importance of clearly explaining INA 214(b) to refused applicants. The officer should state that the applicant has failed to convince the officer that they are eligible for the visa per U.S. immigration law, which requires visa applicants to demonstrate to the satisfaction of a consular officer that they are entitled to a nonimmigrant status. You may paraphrase in the manner you consider most effective, such as telling refused applicants that they may not work without authorization in the United States on a tourist visa.
(6) Ensure every applicant refused under INA 214(b) receives the appropriate refusal letter (see exemplars in 9 FAM 403.10-3(A)(3)). Train officers to emphasize the need for applicants to wait until there has been a significant change in circumstances before reapplying.
(7) Consider leaving reapplication interviews until all the day’s new cases are complete.
(8) Possibly assign one experienced officer to all re-applications who can move through these promptly once new applications are complete.
9 FAM 403.2-7 Deletion of Nonimmigrant Visas (NIV) Cases
9 FAM 403.2-7(A) Efforts Made to Close Nonimmigrant Visas (NIV) Cases
(CT:VISA-1712; 02-28-2023)
a. You must follow instructions from 9 FAM 403.10 to issue or refuse cases at the time of application. This allows cases to be closed and minimizes the chances of an inadvertent visa issuance or deletion.
b. You may not delete a case that meets the criteria for having made a visa application as outlined in 9 FAM 403.2-3 above, nor may you delete a refusal from the system. Even if the refusal is overturned, there must be a record of the original adjudication and subsequent decisions. You should use the overcome/waive functions in the NIV and IVO systems when appropriate (see 9 FAM 403.10-4(B) and 9 FAM 504.11-4(A)). You should only delete cases from the system when no visa application has been made per 9 FAM 403.2-3, or when a case is clearly a duplicate entered in error. Some consular sections may still have test cases in the system entered during IVO or NIV system installations. You may delete those cases. Only a consular officer can authorize the deletion of a case. The accountable consular officer (ACO) or appropriate consular manager must review end-of-day reports daily to monitor deletions, paying close attention to the reason for deletion in each case.
9 FAM 403.2-7(B) Deletion Does Not Purge Consular Consolidated Database (CCD) Records
(CT:VISA-1831; 09-20-2023)
Deletion of NIV records is a tool that must be used carefully to ensure the accuracy of visa records and the Consular Consolidated Database (CCD). Deleted cases will no longer be available in consular section's database, but they may be found in the CCD using the Deleted NIV Applicant Full report under the Nonimmigrant Visa tab in the CCD menu.
9 FAM 403.2-7(C) Deletion of Duplicate Cases
(CT:VISA-1712; 02-28-2023)
You may sometimes find that duplicate cases have been created, because of human error, problems associated with the database locking out an earlier case, or, if pre-loading cases as described in 9 FAM 403.2-7(D), no-shows or applicants with multiple DS-160s. If a single application has been entered more than once, you must delete any duplicate cases after entering a case note that reflects the reason for this action. Once a case has been printed on a visa foil, it cannot be deleted. A case in refused status cannot be deleted. In both instances, the automated visa processing system will not allow the deletion. You must take care to ensure that staff follow proper procedures when overcoming previous refusals. If you discover that a case has been “opened for overcome and/or waive” in error, you should refuse the case again under 221(g) with a case note reflecting the error. You should not delete the case.
9 FAM 403.2-7(D) Procedures When Appointment Systems Create Provisional Cases
(CT:VISA-1553; 06-02-2022)
Some consular sections have implemented appointment systems in which they created cases when appointments were made. You should delete these cases only if an application has not been formally made (see 9 FAM 403.2-3 above). If an application has been made, you must formally refuse the applicant under INA 221(g). You should never create cases for purposes of showing fee paid status or to begin clearance procedures before an actual application.