9 FAM 403.2
(Office of Origin: CA/VO/L/R)
9 FAM 403.2-1 Related Statutory and regulatory Authorities
9 FAM 403.2-1(A) Immigration and Nationality Act
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
22 CFR 41.101; 22 CFR 41.103; 22 CFR 41.106.
9 FAM 403.2-2 Nonimmigrant visa APPLICATION
All necessary administrative steps to facilitate the processing of nonimmigrant visa (NIV) applications should be taken to encourage foreign travel to the United States. Consular officers should ensure that NIV procedures are kept simple and consistent with effective administration of existing laws and regulations. Posts should review their procedures at intervals and revise workflow to adapt to changing conditions. Every applicant is to be given prompt and courteous service.
9 FAM 403.2-3 Definition of "Making a Visa Application"
a. For a nonimmigrant visa (NIV) applicant, "making a visa application" requires the applicant to complete three components:
(1) Submit for formal adjudication by a consular officer a completed Form DS-160, 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 any required biometric data. Biometric data has not been provided until a photograph has been provided 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 yet been verified by a cleared American.
b. Applicants who have provided 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 provided the required biometric information.
c. Please note, per 9 FAM 302.1-8(B) (22 CFR 40.201), when an applicant explicitly refuses to provide fingerprints, you must refuse the application under INA 221(g). This situation is not to be confused with 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) (22 CFR 40.201).
9 FAM 403.2-4 Place of Application
a. As described below, you must accept a nonimmigrant visa (NIV) application in either of two circumstances: the alien is a resident of the consular district, or the Department directs you to accept it. The latter case is very rare. You should also accept a NIV application from an applicant who is physically present in your consular district.
b. Generally the alien should make an application for a nonimmigrant visa in the consular district in which he or she resides. (See 9 FAM 403.2-4(B) below about applicants physically present but not residents of a consular district.)
9 FAM 403.2-4(A) Alien Who is Resident in a Consular District
a. 22 CFR 41.101 requires that you accept applications from visa applicants resident in post’s 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 alien with a place of residence in the district to be physically present in the district nor does it restrict the applicant’s presence to any particular location at the time of application.
b. Residence: “Residence” is defined in INA 101(a)(33) as the alien’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 alien in fact lives and under most common circumstances from which the alien conducts his or her life. It is not necessarily the place where the alien actually is at any given moment.
9 FAM 403.2-4(B) Alien Who is Physically Present But Not Resident in a Consular District
22 CFR 41.101(a) gives you the discretion to permit an alien who is physically present in your consular district to apply for a nonimmigrant visa (NIV) outside his or her resident district. While 22 CFR 41.101(a) gives consular officers discretionary authority to reject applications by persons who are physically present in but not residents of the consular district, the Department expects that such authority will seldom, if ever, be used.
9 FAM 403.2-4(B)(1) Physical Presence
“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 particular location of a person’s general abode, whereas “physical presence” is the particular location of the person at the given time. Thus, although the alien’s general abode may be located in one place, the alien may be physically present in another.
9 FAM 403.2-4(B)(2) Refusals of Out-of-District Applicants
For refusals concerning out-of-district applicants, please see 9 FAM 403.10-2(B)(2).
9 FAM 403.2-4(C) Alien Who is Neither Resident Nor Physically Present in a Consular District
The provisions of 22 CFR 41.101(a) preclude acceptance or processing of a regular type NIV application when the alien is neither a resident of nor physically present in the consular district at the time of application. Under no circumstances whatsoever may a consular officer accept an application from, nor may an NIV be issued to, such an alien. For guidance on A or G visas, or diplomatic and official type visas, which have different requirements regarding physical presence, please see 9 FAM 402.3.
9 FAM 403.2-4(D) Redesignating Consular Posts
The Deputy Assistant Secretary for Visa Services may designate the geographical areas over which consular posts have jurisdiction to process nonimmigrant visas (NIV). This, however, does not affect an alien’s ability to apply for a NIV at any issuing consular post within the country of the alien’s residence. Department approval, however, is necessary before countries with multiple visa-issuing posts 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
a. Form DS-160, Online Nonimmigrant Visa Application, is the application form prescribed under INA 222. Form DS-160 is available to the general public at Consular Affairs’ Consular Electronic Application Center (CEAC).
(1) The Form DS-160 is a completely electronic nonimmigrant application procedure that includes an electronic signature, replacing the paper Form DS-156.
(2) All information entered into Form DS-160 is available to you at the time of the interview.
(3) You must ensure that Form DS-160 is properly and promptly processed in accordance with the applicable regulations and instructions.
b. If the Form DS-160 is unavailable and one of the following conditions has been met, you may accept alternate paper forms. In every case, 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 the Visa Office;
(2) The applicant is a student or exchange visitor who must leave immediately in order to arrive on time for his/her course and you have explicit permission from the Visa Office;
(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/guidance from the Visa Office.
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 nonimmigrant visa 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
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 should include any other names by which the alien 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. Affixing Photograph to Nonimmigrant Visa Applications: The applicant will either electronically upload a picture file into Form DS-160 or have his/her photo taken at the time when the applicant submits to biometric collection at an Applicant Service Center. In some cases, applicants who are unsuccessful in uploading a photo may have to 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 or Immigrant Visa Overseas (IVO) 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 alien reapplies for a visa; and
(4) Record of re-issuance of visa (in the event a previous visa is spoiled or cancelled).
e. Notwithstanding information that may be recorded on Form DS-160, you must enter electronic comments for each refusal, so that the database 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) Alien Unable to Complete the Application
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 the application on his/her 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 alien’s parents or guardian may execute the application on his/her 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
a. Form DS-160 is available to the general public at Consular Affairs’ Consular Electronic Application Center and at CA's travel website and is translated into most common foreign languages, including Arabic, Simplified Character Chinese, Traditional Character Chinese, French, German, Hebrew, Hindi, Indonesian, Italian, Japanese, Korean, Montenegrin, Persian Farsi, Polish, Portuguese, Romanian, Russian, Spanish, Thai, Urdu, and Vietnamese.
b. Other Translations: Posts 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, posts 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. VO/F will review this request in conjunction with other interested offices within Consular Affairs.
9 FAM-403.2-6 Managing Applications from Previously Refused Applicants
9 FAM 403.2-6(A) Limiting Applications From Previously Refused Applicants
a. You may not institute a procedure requiring applicants recently refused visas to submit new applications in writing outside of the ordinary application process. Such procedures interpose an unnecessary step in the visa process, which 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 in particular 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 the purposes of 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. This may be a particularly useful tactic in countries aspiring to the Visa Waiver Program. Emphasize that repeat refusals contribute to the overall refusal rate in a country.
(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 periods 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 214(b) to refused applicants. The officer should state that the applicant has failed to convince the officer that he or she is eligible for the visa per U.S. immigration law, which requires visa applicants to demonstrate to the satisfaction of the 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 re-applying.
(7) Consider leaving re-application 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
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 out and minimizes the chances of an inadvertent visa issuance or deletion.
b. 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. 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 posts may still have test cases in the system entered during IVO or NIV system installations. You may delete those cases. Only consular officers may 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
Deletion of nonimmigrant visas (NIV) records is a tool to be carefully used at post to help ensure the accuracy of post records and the Consular Consolidated Database (CCD). 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 Non-Immigrant Visa tab in the CCD menu.
9 FAM 403.2-7(C) Deletion of Duplicate Cases
From time to time you may find that duplicate cases have been created, either because of human error or problems associated with the database locking out an earlier case. If a single application has been entered more than once, posts 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 particular care to ensure that proper procedures are followed with overcoming previous refusals. If post discovers 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 Provisional Cases Are Created With Appointment Systems
Some posts have implemented appointment systems in which they created cases when appointments were made. Posts should delete these cases only if an application has not been formally made (see 9 FAM 403.2-3). If an application has been made, you must formally refuse the applicant under INA Section 221(g). You should never create cases for purposes of showing fee paid status or to begin clearance procedures prior to actual application.