9 FAM 306.2
(U) Overcoming a Refusal
(Office of Origin: CA/VO)
9 FAM 306.2-1 (U) Overview
(U) INA 291 places the burden of proof upon the applicant to establish eligibility to receive a visa. However, the applicant is entitled to have full consideration given to any evidence presented to overcome a presumption or finding of ineligibility. It is the policy of the U.S. Government to give the applicant every reasonable opportunity to establish eligibility to receive a visa. This policy is the basis for the review of refusals at consular offices and by the Department. With regard to cases involving classified information, the cooperation accorded the applicant must be consistent with security considerations, within the reasonable, non-arbitrary, exercise of discretion in the subjective judgments required under INA 214(b) and 221(g).
9 FAM 306.2-2 (U) Justifications for Overcomes
9 FAM 306.2-2(A) (U) When a Refusal May Be Overcome
a. (U) 221(g) Cases: You should find that an immigrant visa (IV) or nonimmigrant visa (NIV) applicant has overcome a refusal under INA 221(g) in two instances: when additional evidence is presented or administrative processing is completed.
(1) (U) Additional Evidence Presented: When the applicant has presented additional evidence to attempt to overcome a prior refusal, you should re-open and re-adjudicate the case by overcoming the prior INA 221(g) refusal and determining whether the applicant is not eligible for a visa. Examples include:
(a) (U) An IV applicant missing a required document, a birth certificate, for example, should be refused under INA 221(g) pending that certificate (see 9 FAM 403.10-3(A) for guidance on INA 221(g) refusals). When the applicant submits the required document, you should overcome the previous INA 221(g) refusal and determine whether the applicant is now eligible for the visa.
(b) (U) Similarly, if an applicant refused under INA 221(g) because you decided that you do not have enough information to make a finding of whether the applicant is ineligible under INA 212(a)(4), subsequently presents sufficient evidence to make a public charge determination, you should overcome the INA 221(g) refusal and process the case to completion.
(c) (U) The amount of time the applicant has to overcome a refusal is not indefinite.
(i) (U) For IV cases, the applicant has one year from the date of refusal to produce additional evidence "to overcome the ground of ineligibility on which the refusal was based." If an IV applicant wants to present additional evidence after one year, the applicant must submit a new DS-260 and pay a new IV fee.
(ii) (U) For NIV cases, Department regulations do not set a time limit on accepting additional evidence to overcome a refusal. Consular managers may use discretion in setting an appropriate policy, but no additional evidence provided one year or more after the refusal should be considered without requiring a new application and fee. If a post sets a time period of less than one year in which additional evidence will be accepted, keep in mind that you may not charge an additional MRV fee to applicants refused under INA 221(g) who re-apply within one year of that refusal (see 9 FAM 403.4-2).
(2) (U) Administrative Processing Completed:
(a) (U) A prior INA 221(g) refusal entered for administrative processing may be overcome once you can determine administrative processing is completed and you receive any required advisory opinion or other needed information.
b. (U) 214(b) Cases:
(1) (U) In general: Most cases refused under INA 214(b) are refused because the applicant has not convinced the officer of his or her intent to return abroad after his or her stay in the United States, as required under INA 101(a)(15)(B) (see 9 FAM 402.2-2(C) and 9 FAM 302.1-2). Except in unusual cases, as described in 9 FAM 403.10-3(B) paragraph e, these refusals should not be overcome. Instead, you may suggest the applicant reapply when relevant circumstances have changed. If you believe you have an unusual case in which an INA 214(b) refusal was erroneous and should be overcome, you should discuss it with your supervisor.
(2) (U) Refusal in error: Overcome/Waive (O/W) may be appropriate for refusals under INA 214(b) in cases where a supervisor determines the INA 214(b) refusal clearly was made in error; for example, if the supervisor determines the adjudicating consular officer incorrectly found the applicant did not fit the standards of the particular NIV classification for which he or she had applied (see 9 FAM 302.1-2(B)(4)) or the supervisor determines, following a re-interview in-person or by telephone, that the applicant’s circumstances overcome the INA 214(b) presumption of immigrant intent, based on local conditions and any written adjudication standards established by the manager. If a supervisor intends to overcome a denial in such a case, he or she should discuss it with the refusing officer and take personal responsibility for the case and complete adjudication following the re-interview.
c. (U) 212(a) Refusals:
(1) (U) An applicant can overcome an IV or NIV refusal under INA 212(a) by presenting sufficient evidence to convince you that the inadmissibility no longer applies.
(2) (U) Public Charge Refusals Under 212(a)(4)(A) and Additional Evidence: Additional evidence can take many forms, including a new affidavit of support, an amended tax return, evidence of additional assets, or evidence of employment. You must evaluate the additional evidence in light of the “totality of circumstances” criteria in 9 FAM 302.8-2(B)(2), taking into account the credibility of the evidence. Keep in mind that a sudden, unexplained adjustment of income or assets that allows an affidavit of support to exceed the Federal Poverty Guidelines, without a sufficient credible explanation for the change in financial status and expectation that the change is permanent, would likely have little credibility in determining that the applicant’s overall circumstances have changed.
d. (U) Documenting Overcome/Waive: All Overcome/Waive decisions must be supported by clear case notes explaining the error or additional information that resulted in the determination to Overcome/Waive the prior refusal.
9 FAM 306.2-2(B) (U) Change of Circumstances
9 FAM 306.2-2(B)(1) (U) 214(b) Refusals
(U) Most refusals of NIVs are made under INA 214(b) which requires that every visa applicant (except those applying for the L and H-1B categories) is presumed to be an immigrant until he or she establishes entitlement to nonimmigrant status under INA 101(a)(15) at the time of application for a visa. There is no waiver of this ground of ineligibility, nor is it a permanent ground of ineligibility. The determination that the alien is not a nonimmigrant (i.e., is an intending immigrant) can be made only on the basis of the facts existing at the time of a specific visa application. The fact that a visa applicant was unable to establish that he or she qualified for a nonimmigrant visa at one time would not preclude such applicant from subsequently qualifying for a visa by showing a change in circumstances.
9 FAM 306.2-2(B)(2) (U) Overcoming a Refusal Based on a Removal of a DHS Finding of Inadmissibility
9 FAM 306.2-2(C) (U) Never Delete a Case That Meets the Definition of “Making a Visa Application”
(U) In no case should you delete a case that meets the criteria for having made a visa application as outlined in 9 FAM 403.2-3 or a refusal from the system.
(1) (U) Even if the refusal is overturned, there must be a record of the original adjudication and subsequent decisions.
(3) (U) 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. See 9 FAM 403.2-7 for information on deleting cases.
(4) (U) An NIV record without an application can occur when cases have been data-entered but the case does not meet the definition of having made a visa application (see 9 FAM 403.2-3).
(5) (U) Some posts may still have test cases in the system that were put in during IV or NIV system installations. You may delete those cases.
(6) (U) Deleted cases will no longer be available in post’s database, but they may be found in the CCD using the Deleted NIV Applicant Full report under the Nonimmigrant Visa tab in the CCD menu.
9 FAM 306.2-2(D) (U) Waivers of Ineligibility
(U) You should refer to the ineligibility-specific notes in 9 FAM 302.1 through 9 FAM 302.14 as well as the notes in 9 FAM 305.1 through 9 FAM 305.4 regarding waivers for information regarding the availability of waivers of ineligibility for immigrant and nonimmigrant visa applicants.