9 FAM 301.3
(U) Eligibility – Classification Requirements
(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
(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
(U) 22 CFR 41; 22 CFR 42.
9 FAM 301.3-2 (U) Eligibility for Visa Classification
a. (U) Visa applicants must demonstrate that they fit within a group of people authorized to apply for a visa; these groups are called classifications, and 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 alien spouse of a U.S. citizen (INA 201(b)(2)) must demonstrate that he or she is a “spouse,” in accordance with U.S. laws and regulations, to qualify for an immigrant visa as an "immediate relative." As another example, an alien visitor for pleasure under INA 101(a)(15)(B) must show that his or her purpose of travel fits within the regulatory definition for “pleasure,” 22 CFR 41.31, and that he or she has a residence abroad which the alien has no intent of abandoning. For residence abroad. (See 9 FAM 401.1-3(F)(2)) 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 he or she does 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, consular officers must verify that applicants are entitled to the visa classification for which he or she has 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. Note also 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
a. (U) You may not issue a visa to an individual unless you are satisfied that the applicant is an alien. An alien is defined at INA 101(a)(3) as "any person not a citizen or national of the United States." 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 be an alien if i) he or she formally relinquished U.S. citizenship and obtained a Certificate of Loss of Nationality (CLN) from the Department; or ii) he or she was born in the United States, but not subject to the jurisdiction of the United States, which occurs if the 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.
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 he or she 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, the consular officer should consider the applicant to be an alien.
(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.
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 an alien despite United States citizen parentage, you may issue a visa if the applicant is otherwise qualified. If you are not satisfied that the applicant is an alien, 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 Advisory Opinion request to L/CA.