UNCLASSIFIED (U)

9 FAM 301.3

(U) Eligibility – Classification Requirements

(CT:VISA-1561;   06-09-2022)
(Office of Origin: CA/VO)

9 FAM 301.3-1  (U) Statutory and Regulatory Authorities

9 FAM 301.3-1(A)  (U) Immigration and Nationality Act

(CT:VISA-759;   04-09-2019)

(U) INA 101(a)(3) (8 U.S.C. 1101(a)(3)), INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(27) (8 U.S.C. 1101(a)(27)); INA 201 (8 U.S.C. 1151); INA 203 (8 U.S.C. 1153).

9 FAM 301.3-1(B)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 41; 22 CFR 42.

9 FAM 301.3-2  (U) Eligibility for Visa Classification

(CT:VISA-1342;   08-11-2021)

a. (U) Visa applicants must demonstrate that they fit within a group of people authorized to apply for a visa; these groups are determined by classifications that are established in the Immigration and Nationality Act.  Most nonimmigrant classifications are outlined in INA 101(a)(15), and immigrant classifications are established in INA 201 and 203.

b. (U) The INA sets out the legal requirements for each classification.  Visa regulations for each classification establish what must be demonstrated to show that an applicant is eligible for that classification.  For example, an applicant for an immigrant visa as the spouse of a U.S. citizen (INA 201(b)(2)) must demonstrate that they are a “spouse,” in accordance with U.S. laws and regulations, to qualify for an immigrant visa as an "immediate relative."  As another example, a visitor for pleasure under INA 101(a)(15)(B) must show that their purpose of travel fits within the regulatory definition for “pleasure,” 22 CFR 41.31, and that they have a residence abroad which they have no intent of abandoning.  As a further example, a student seeking a nonimmigrant visa under INA 101(a)(15)(F)(i) must be a bona fide student qualified to pursue a full course of study, have a residence abroad they do not intend to abandon, and have been accepted to pursue a full course of study at a DHS-approved institution.

c.  (U) In all cases, you must verify that applicants are entitled to the visa classification for which they have applied.  See discussion of individual classifications in 9 FAM 402 (nonimmigrants) and 9 FAM 502 (immigrants) for specific requirements to establish entitlement to each classification.  Also see instructions on the significance of DHS approval of petitions (for example, see 9 FAM 402.10-9(A) related to nonimmigrant H petitions, or 9 FAM 502.3-4(D) on petitions for adoptees under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Convention)).

d. (U) See also 9 FAM 301.1 for a general overview on eligibility for visas.  Eligibility for the visa classification is only one element in visa adjudication; applicants must also complete all documentary and procedural requirements and must show that they are not subject to ineligibilities or grounds for refusal.

9 FAM 301.3-3  (U) Visa APPLICATIONS FROM APPLICANTS WHO MAY BE U.s. Citizens

(CT:VISA-1561;   06-09-2022)

a. (U) You may not issue a visa to an individual unless you are satisfied that the applicant is not a U.S. citizen or U.S. national.  If a visa applicant has a U.S. passport or Consular Report of Birth Abroad (CRBA) application pending, you should refuse the visa application under INA 221(g) pending resolution of the citizenship issue unless the Department authorizes visa issuance. 

b. (U) Applicants born in the United States: An applicant born in the U.S. may not be a U.S. citizen if:

(1)  (U) They formally relinquished U.S. citizenship and obtained a Certificate of Loss of Nationality (CLN) from the Department; or

(2)  (U) They were born in the United States, but not subject to the jurisdiction of the United States, which occurs if a child was born to a foreign mission member parent who enjoyed diplomatic agent level immunity at the time of the child's birth, assuming the other parent was not a U.S. citizen.  If the applicant was born in the United States, you may only issue a visa if you are satisfied that the applicant relinquished citizenship, if non-citizenship is established by conducting a "CFMM" (Children of Foreign Mission Members) check as described below, or if the Department authorizes visa issuance.  See paragraph c below.

c. (U) Applicants born in the United States to foreign mission members (CFMM): Most persons born in the United States acquire U.S. citizenship at birth under INA 301.  The 14th Amendment of the U.S. Constitution also provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

(1) (U) Foreign mission members who enjoy diplomatic agent level immunity are not subject to, or, in other words, are immune from, the jurisdiction of the receiving state.  This means that their U.S.-born children (CFMMs) also are not born subject to the jurisdiction of the United States and do not acquire U.S. citizenship at birth. 

(2) (U) The diplomatic status and immunities of any U.S.-born visa applicant to whom the Department has not issued a CLN must be assessed through a CFMM check before they may be issued a U.S. visa.

(3)  (U) In unusual cases where the CFMM check does not result in a conclusive determination of the applicant's citizenship, a visa may be issued upon consultation with L/CA and L/DL if the applicant is otherwise eligible for a visa.  In such cases, you should consider the applicant to not be a U.S. citizen.

(4)  (U) You should refuse the visa under INA 221(g) and request a CFMM check for any U.S.-born applicant who has not relinquished U.S. citizenship as described in paragraph b above.

(a)  Unavailable

(b)  Unavailable

(c)  Unavailable

d. (U) Applicants Born Outside the United States: Do not use the CFMM Check process for individuals born outside the United States.  If you are satisfied that the individual is not a U.S. citizen despite United States citizen parentage, you may issue a visa if the applicant is otherwise qualified.  If you believe that the applicant may be a U.S. citizen, you may refuse the visa under INA 221(g) and request additional information from the applicant.  For guidance on children seeking expeditious naturalization under INA 322 with a B nonimmigrant visa.  See 9 FAM 402.2-4(B)(7).  If you have any questions, you may submit an AO to L/CA.   

 

UNCLASSIFIED (U)