UNCLASSIFIED (U)

9 fam 400
nonimmigrant visas

9 fam 401
Nonimmigrant Status

9 FAM 401.1

Introduction to Nonimmigrant Visas and Status

(CT:VISA-1389;   10-14-2021)
(Office of Origin:  CA/VO)

9 FAM 401.1-1  Statutory and Regulatory Authority

9 FAM 401.1-1(A)  Immigration and Nationality Act

(CT:VISA-1202;   01-12-2021)

INA 101(a)(15) (8 U.S.C. 1101(a)(15)); INA 101(a)(33) (8 U.S.C. 1101(a)(33)); INA 214(b) (8 U.S.C. 1184(b)); INA 221(g) (8 U.S.C. 1201(g)); INA 291 (8 U.S.C. 1361).

9 FAM 401.1-1(B)  Code of Federal Regulations

(CT:VISA-277;   01-05-2017)

8 CFR Part 213; 22 CFR 40.6; 22 CFR 41.11; 22 CFR 41.26; 22 CFR 41.27.

9 FAM 401.1-1(C)  United States Code

(CT:VISA-1202;   01-12-2021)

22 U.S.C. 611; 22 U.SC. 612; 22 U.S.C. 613.

9 FAM 401.1-2  Overview- Nonimmigrant Visas and Status

(CT:VISA-1389;   10-14-2021)

a. NIVs are for international travelers coming to the United States temporarily.  The NIV allows the bearer to travel to a U.S. port of entry and request permission of the Department of Homeland Security (DHS) Customs and Border Protection (CBP) immigration officer to enter the United States.  However, an NIV does not guarantee entry into the United States.  CBP will decide how if the NIV holder may be admitted and for how long the individual may remain in the United States in nonimmigrant status.

b. International travelers come to the United States for a wide variety of reasons, including tourism, business, medical treatment and certain types of temporary work.  NIV classifications are defined by immigration law and relate to the principal purpose of travel.

9 FAM 401.1-3  ELIGIBILITY FOR Nonimmigrant Status

9 FAM 401.1-3(A)  Length of Stay and Permissible Activities

(CT:VISA-1389;   10-14-2021)

The Immigration and Nationality Act (INA) makes basic distinctions between immigrants and nonimmigrants regarding length of stay and permissible activities.  A nonimmigrant may remain only for a specific period and may engage only in activities allowed for the assigned NIV classification under INA 101(a)(15).  Nonimmigrants will be subject to removal or other measures if they fail to maintain nonimmigrant status, fail to depart at the end of the authorized period of stay, or engage in unauthorized activities. 

9 FAM 401.1-3(B)  Restrictions on Employment

(CT:VISA-1389;   10-14-2021)

a. The most significant restriction on activities of nonimmigrants relates to employment.  In certain NIV classifications, employment is prohibited.  In others, employment of a specified, restricted kind may be authorized upon fulfillment of certain requirements.  Therefore, an applicant expecting to be gainfully employed in the United States may not be classified as a nonimmigrant unless the intended employment is, or may be, authorized under a nonimmigrant classification.  Refer to 9 FAM 402.1 through 9 FAM 402.18 for guidance on the NIV category for specific employment-related restrictions.   

b. An intention to accept employment is often tied with an intention to remain in the United States for an extended period.  This need not, however, always be the case.  For example, an applicant employed in an occupation subject to seasonal fluctuations might apply for a tourist visa to earn money in the United States during the slack season at home and then returning home to resume regular employment.  They may not intend to remain in the United States longer than would be authorized but may intend to engage in unauthorized activities during the stay in the United States and may not qualify for certain NIVs for that reason. 

9 FAM 401.1-3(C)  Intent to Adjust Status

(CT:VISA-1389;   10-14-2021)

Generally, it is impermissible for an individual to enter the United States on an NIV to seek adjustment of status under INA 245.  You must review the requirements of the specific visa classification sought to determine whether the residence abroad requirement applies.  If the classification is subject to a residence abroad requirement, then travel to the United States with no intent to return to one's residence or for the specific purpose of adjusting status would be inconsistent with that visa classification.  On the other hand, there are NIV classifications, such as those found at INA 101(a)(15)(H)(i)(b), (K), and (L), which hold no prohibition on residence in the U.S. or adjustment of status to LPR.

9 FAM 401.1-3(D)  INA 214(b)

(CT:VISA-1389;   10-14-2021)

a. INA 101(a)(15) defines an immigrant as an individual who does not meet the requirements of one of the nonimmigrant classifications listed in that section.  To put this distinction into practice, INA 214(b) presumes all visa applicants (except for applicants for H-1B, L, or V visas) to be immigrants until they prove to you that they qualify for the nonimmigrant visa classification sought.

b. Pursuant to INA 291, to be classified as a nonimmigrant, the applicant must prove to your satisfaction that they are entitled to a nonimmigrant status under INA 101(a)(15).  The applicant must demonstrate that they are entitled to nonimmigrant status and that their intended activities are consistent with the status for which they are applying. 

c. You must assess the credibility of the applicant and the evidence submitted to determine qualifications under INA 101(a)(15).  You must be satisfied that the applicant will engage in the activities authorized under the NIV classification and will abide by the conditions of that nonimmigrant classification and maintain lawful status. 

d. When adjudicating NIV applications, keep in mind that the standards for qualifying for an NIV are found in the relevant subsections of INA 101(a)(15) rather than in INA 214(b) or 291.  Any questions of law regarding whether an activity is permissible in the specific NIV classification must be addressed through the appropriate AO process.

e. For further information on INA 214(b), see 9 FAM 302.1-2.

9 FAM 401.1-3(E)  Residence Abroad

9 FAM 401.1-3(E)(1)  When Residence Abroad Required

(CT:VISA-1389;   10-14-2021)

Some NIV classifications impose the requirement that the applicant maintain a residence abroad.  These classes are B, F, H (except H-1), J, M, O-2, P, and Q.  Like purpose of travel, maintaining a residence abroad is an essential part of eligibility for these NIVs.  If an applicant fails to satisfy you of this requirement, they are not eligible for the requested NIV classification and you must refuse the application.

9 FAM 401.1-3(E)(2)  Residence Abroad Defined

(CT:VISA-1389;   10-14-2021)

a. The term “residence” is defined in INA 101(a)(33) as the place of general abode which means the person's principal, actual dwelling place in fact, without regard to intent.  This does not mean that an applicant must maintain an independent household to meet the requirement of a residence abroad.  If the applicant customarily resides in the household of another, that household is the residence in fact.  Only the following visa categories are subject to residence abroad requirements:  B, F, H (except H1), J, M, O2, P, and Q.  When adjudicating this requirement, it is essential to view the requirement within the context of the visa classification.  See the 9 FAM guidance related to the visa classification for the relevant discussion.

b. The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin.

c.  The residence in a foreign country does not need to be the applicant’s current residence.  For example, an applicant who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit in the United States.

d. Suspicion that an applicant, after admission, may be swayed to remain in the United States because of more favorable living conditions is not a sufficient ground to refuse a visa if the applicant's current intent is to return to a foreign residence.

e. You may issue visitor visas to applicants with IV applications pending or, with IV petitions pending with the United States Citizenship and Immigration Services (USCIS).  You must be satisfied that the applicant’s intent in seeking entry into the United States is to engage in activities consistent with B1/B2 classification for a temporary stay and that the applicant has a residence abroad which they do not intend to abandon.  While an active immigrant visa application or petition is reflective of an intent to immigrate, unless you have reason to believe the applicant’s true intent is to remain in the United States until such a time as an immigrant visa (IV) becomes available, you may issue the visa if the applicant is otherwise qualified.

9 FAM 401.1-4  Maintenance of Status and Departure Bond

9 FAM 401.1-4(A)  Bonds Should Rarely Be Used

(CT:VISA-1389;   10-14-2021)

a. Although 22 CFR 41.11(b)(2) permits you to require a maintenance of status and departure bond in certain cases, it is Department policy that such bonds will rarely, if ever, be used.  The mechanics of posting, processing, and discharging a bond are cumbersome, and many DHS offices are reluctant to accept them.  In addition, the nature of the bond can often lead to misunderstanding and confusion, especially in countries where surety bonds are uncommon.  The result can be a public misperception that you actually have requested a bribe to issue the visa. 

b. Bonds are not effective guarantees of departure.  In an era when some potential migrants are willing to pay thousands of dollars for false documents or smugglers’ services, possible forfeiture of a bond is little deterrence, and sometimes might be cheaper than other means of illegal entry.  If an applicant is likely to violate status or fail to return to their residence abroad, you must refuse the visa under INA 214(b). 

9 FAM 401.1-4(B)  Department Approval Required in Bond Cases

(CT:VISA-1202;   01-12-2021)

You must obtain approval from the Department (CA/VO/F) before requesting that an applicant post a maintenance of status and departure bond. 

9 FAM 401.1-4(C)  Bond Requirement Determined by Consular Officer

(CT:VISA-1389;   10-14-2021)

The second proviso to INA 221(g) provides for the posting of the maintenance of status and departure bond only in cases of applicants for B or F visas.  The posting of such a bond should be required of an applicant only if you are not fully satisfied that the applicant will maintain visitor or student status in the United States and depart as required.  You should never rely on such a bond as a substitute for a reasoned judgment with respect to the applicant’s eligibility for a visa.

9 FAM 401.1-4(D)  Amount, Validity Period, and Posting of Bond

(CT:VISA-1202;   01-12-2021)

The maintenance of status and departure bond is to be posted with the DHS district director having jurisdiction over the area of the United States in which the applicant proposes to visit or pursue a course of study.  After acceptance by DHS, the bond is valid for 1 year.  Bonds are normally required in amounts ranging from a minimum of $1,000 to a maximum of $5,000 in increments of $500.  In considering applications by a family group, you may require the posting of a bond by all, some, or only one of the applicants. 

9 FAM 401.1-4(E)  Bond Posted and Accepted Prior to Visa Issuance

(CT:VISA-1202;   01-12-2021)

After requiring the posting of a bond, you may not issue a visa to the applicant prior to the receipt of notification from the appropriate DHS district director that the bond has been posted and accepted. 

9 FAM 401.1-4(F)  Forfeiture of Bond

(CT:VISA-1389;   10-14-2021)

The maintenance of status and departure bond is not forfeited unless the individual violates status in the United States.  A change of nonimmigrant status pursuant to INA 248 or adjustment of status pursuant to INA 245 does not result in forfeiture so long as the individual complies with the terms and conditions of the status in which they were admitted or to which they later changed or adjusted. 

9 FAM 401.1-4(G)  Limitation on Visa Validity When Bond Posted

(CT:VISA-1202;   01-12-2021)

You must limit visas for which a bond has been required and posted to one entry and 6 months validity.  This will enable the DHS to cancel bonds upon request without communicating with the visa-issuing post.

9 FAM 401.1-4(H)  Procedures Relating to Bonds

(CT:VISA-1389;   10-14-2021)

a. Notification to Applicant:  When a bond is to be required of an applicant for a B or F visa, you must notify the applicant in writing of the requirement and specify both the classification of the visa under consideration and the exact amount of the bond required.  This notification must also include the applicant’s full name, nationality, date of birth, and country of birth.  If a bond is to be required of more than one member of a family group, your notification must include all the foregoing information for each person for whom a bond is to be required.  The amount of the bond for each person is to be specified.  The applicant, (or the applicant's representative in the United States), is to be instructed to submit the original, or a copy of your written notification to the DHS as explained below. 

b. Form of Collateral:  A bond may be posted in the form of cash (U.S. currency only), U.S. Treasury Bonds or Notes, or an international or domestic postal money order made payable to the “Department of Homeland Security" (DHS) in U.S. dollars.  U.S. Savings Bonds are not acceptable for this purpose. 

c.  Posting of Bond by Applicant:  An applicant who wishes to post the bond personally may write directly to the appropriate DHS district director, enclosing your notification. 

(1)  Upon receipt of such a request, the district director prepares Form I-352, Immigration Bond, in duplicate, and transmits it to the applicant for signature.  The applicant must sign the form at the consular office in the presence of two national employees as witnesses.  The applicant must also execute the block captioned "PLEDGE AND POWER OF ATTORNEY FOR USE WHEN CASH IS DEPOSITED AS SECURITY."  You must witness the execution of this block and affix the consular seal.  You must then return Form I-352 to the appropriate DHS district director. 

(2)  If the applicant will post the bond personally, but does not have, or does not desire to obligate the full amount required, they may also consult a foreign insurance or indemnity company to have the bond posted by an approved surety company in the United States.  In this case, your notification is to be sent to the surety company for presentation to the appropriate DHS district director.  A representative of the surety company will complete Form I-352.

d. Posting of Bond by Interested Person in the United States:  If the applicant has a friend, relative, or other interested person in the United States who is prepared to post the bond, the applicant should send your notification to that person for presentation to the DHS district director. 

e. Cancellation of Bond After Issuance of Visa:  If an interested person in the United States has posted a bond on behalf of an applicant and later seeks to withdraw or cancel the bond before the applicant departs for the United States, the DHS district director will direct the interested person to have the applicant visit the consular office for cancellation of their visa.  Upon cancellation of the visa, you must inform the district director of the visa cancellation so that the bond may be canceled, and the collateral returned to the interested person. 

f.  Notify DHS When Visa Cancelled:  In some cases, prior to the applicant's departure for the United States, the sponsor may request that the visa be canceled to withdraw the bond.  After physically canceling the visa, you should notify the DHS office at which the bond was posted by letter so that the bond may be canceled, and the money released.  The letter should contain the applicant’s full name, date and place of birth, nationality, the amount of the bond, the applicant’s “A” serial number (shown on DHS notification of bond posting), and the date on which the visa was actually canceled.  You must make the appropriate notation on the Form DS-160, Online Nonimmigrant Visa Application to show that the visa was canceled.  See 9 FAM 403.2-5(B)(1).

g. Cancellation of Bond After Applicant’s Departure from the United States:  In some cases, when DHS has no record of the departure of an applicant for whom a bond was posted, the district director may request that the applicant appear before a consular officer abroad to verify that they  returned to a foreign country.  In these cases, you must confirm that the applicant has departed the United States and provide the date of departure, as stated by the applicant, as well as any evidence verifying that date. 

h. Notations to be Placed in Visa Issued to Applicant for Whom Bond Posted:  See 9 FAM 403.9-8(B) paragraph (7).

9 FAM 401.1-5  Foreign Agents Registration Act

(CT:VISA-1389;   10-14-2021)

a. Persons Subject to Act:  The Foreign Agents Registration Act (22 U.S.C. 611 - 613) requires persons within the United States acting as agents of a foreign principal to register with the Department of Justice (DOJ).  The purpose of this Act is “to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.”  If statements obtained from an applicant in connection with a visa application suggest that they may be subject to the registration requirement of the Act, you must so inform them and advise that registration forms may be obtained, after arrival in the United States, from the DOJ, Washington, DC. 

b. Foreign Officials Exempted: Accredited diplomatic or consular officers and other officials of a foreign government are exempted from the registration requirement of the Act. 

UNCLASSIFIED (U)