UNCLASSIFIED (U)

9 FAM 403.5

(U) NIV Interview by Consular Officer

(CT:VISA-1678; 12-28-2022)
(Office of Origin: CA/VO)

9 FAM 403.5-1 (U) STATUTORY, regulatory, and other Authorities

9 FAM 403.5-1(A) (U) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 222(h) (8 U.S.C. 1202(h)).

9 FAM 403.5-1(B) (U) Code of Federal Regulations

(CT:VISA-93; 03-17-2016)

(U) 22 CFR 41.101; 22 CFR 41.102.

9 FAM 403.5-2 (U) Interview Requirement

(CT:VISA-1462; 01-28-2022)

a. Unavailable

b. (U) Every applicant seeking an NIV must apply in person and be interviewed by a consular officer unless a specific exception allows for waiver of the interview requirement.

c. Unavailable

(1) (U) Generally, all applicants who are at least 14 years of age and not more than 79 must be interviewed in person. The Department requires NIV applicants to physically appear before a consular officer for a visa interview unless the interview requirement has been waived. Following an in-person interview, if you decide that more information is needed from the applicant, you should contact the applicant promptly to request it.

(2) (U) The circumstances in which you may waive an interview for an NIV applicant are limited to the categories set out in section 222(h)(1)(A) and (B) of the INA. See also 9 FAM 403.5-4(A) below.

(3) (U) If you receive a case that does not qualify for an interview waiver under one of these categories, but an interview waiver appears warranted, you may forward a recommendation for waiver through your VO/F post liaison.

(4) (U) If the applicant is within one of the categories set forth in 9 FAM 403.5-4(B) paragraph c below, for example because eligibility issues or national security concerns arise in the visa application, you must conduct an in-person interview of the applicant.

d. (U) If none of the grounds in 9 FAM 403.5-4(B) below that mandate an in-person interview apply, any applicant (first-time or renewal) who is:

(1) (U) Under 14 years of age; or

(2) (U) Over 79 years of age

is exempt from the requirement of a visa interview.

9 FAM 403.5-3 (U) Nonimmigrant Visa Interviews

(CT:VISA-723; 01-23-2019)

(U) There are several steps in the NIV process, each of which are discussed in detail in 9 FAM 403.29 FAM 403.10.

9 FAM 403.5-4 (U) Waivers of Interview Requirement

(CT:VISA-1387; 10-14-2021)

a. (U) Under INA 222(h), any applicant applying for an NIV who is at least 14 years of age and not more than 79 years of age must submit to an in-person interview unless an exception applies.

b. (U) The waiver of the interview requirement for an applicant does not change the requirements and standards of existing regulations and instructions regarding security checks, visa classification, number of entries, and validity of visas. Even in cases in which the interview is waived, each case must have an associated DS-160 or, in exceptional cases as outlined in 9 FAM 403.2-5(A), alternate paper forms.

9 FAM 403.5-4(A) (U) Waiver of Interview

(CT:VISA-1462; 01-28-2022)

a. (U) If the individual is not already exempt from an interview requirement based on their age in accordance with 9 FAM 403.5-2 paragraph d above, you may waive the in-person interview requirement for an applicant if the applicant falls within a waiver category described in 9 FAM 403.5-4(A)(1) below and the applicant is not within one of the categories set forth in 9 FAM 403.5-4(B) below.

b. (U) If the applicant does not fall within a waiver category outlined in 9 FAM 403.5-4(A)(1) below, and if the applicant is not ineligible for interview waiver under 9 FAM 403.5-4(B) below, and but you believe waiving the interview would be in the national interest of the United States or is necessary due to unusual or emergent circumstances under 9 FAM 403.5-4(A)(1) paragraphs b or c, contact your VO/F post liaison to determine if a waiver is available.

c. (U) Remember to exercise the interview waiver authority with judgment and care. You remain ultimately responsible for the final decision. You must request an interview if the applicant is within one of the categories set forth in 9 FAM 403.5-4(B) paragraph c below, for example because additional information or clarification is needed as to the applicant's intentions or qualifications for a NIV prior to the issuance of a visa. Keep in mind that you always have the option to require an interview of any applicant if you doubt the applicant’s credibility. You must also be vigilant to ensure that interview waiver procedures are not used to commit fraud.

d. Unavailable

9 FAM 403.5-4(A)(1) (U) Interview Waiver Categories

(CT:VISA-1678; 12-28-2022)

a. (U) Waiver by Consular Officers:

(U) You may waive the interview of any visa applicant who falls under one or more of the following categories in paragraphs a(1)-(6) below if the applicant is not within one of the categories in 9 FAM 403.5-4(B):

(1) (U) Is within a class of NIVs classifiable under the visa symbols A-1, A-2, C-2, C-3 (except personal or domestic employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, or TECRO E-1 and who is seeking a visa in such classification;

(2) (U) Is an applicant for a diplomatic type or official visa type as described in 22 CFR 41.26 or 22 CFR 41.27, respectively, and is applying for such visa using a diplomatic or official passport.

(3) (U) Renewals in the same category:

(a) (U) Is applying for the same NIV classification not more than 48 months after the date on which the prior visa expired (i.e., same visa class and same category of applicant within that visa class (principal or derivative));

(b) (U) Is applying in the consular district of their normal residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and

(i) (U) For example, a B1/B2, E, L, or R visa holder who is seeking to renew their visa in the same NIV category within 48 months of their last visa’s expiration date within the consular district of their normal residence qualifies for interview waiver for renewals.

(ii) (U) On the other hand, an E-2 derivative spouse applying for a visa as an E-2 principal, or as an R would need to appear for an interview.

(iii) (U) The adjudication may occur outside the 48-month window if the application is made within 48 months of the previous visa’s expiration date. The criteria for making an application are defined in 9 FAM 403.2.

(c) (U) You must verify that the applicant's SEVIS record indicates a SEVIS status of "initial" or "active," and should request an interview if you identify any discrepancies between the current and previous visa applications or wish to interview the applicant for any other reason.

(4) (U) H-2A and H-2B Applicants:

Until December 31, 2023, an applicant for an H-2 visa in one of the following categories:

(a) (U) First-time H-2 applicants with no associated derogatory information. DHS has concurred that the Department need not require fingerprints for first-time H-2 applicants worldwide. For applicants who previously submitted 10 fingerprints, you should reuse those for the current application.

(b) (U) First-time H-2 applicants with potential derogatory information that the officer can exclude as not rising to the level of an ineligibility without requiring the applicant appear for an interview (e.g., if an officer receives a report that the applicant absconded from a worksite, but ADIS records in PCQS confirm that the individual simply departed the United States in status).

(c) (U) Applicants for an H-2 visa submitted within 48 months of the expiration of a previous NIV in any classification.

(d) (U) DHS has concurred that the Department need not require fingerprints for:

(i) (U) First-time H-2 nonimmigrant visa applicants; and

(ii) (U) Returning H-2 nonimmigrant visa applicants who were not required to provide fingerprints before being issued a visa under the previously approved policy.

(iii) (U) For applicants who previously submitted 10 fingerprints, you should reuse those for the current application.

(5) (U) F, M, and Academic J Applicants:

(a) Unavailable

(i) (U) Applicants who were previously issued any type of visa; who have never been refused a visa, unless that refusal was subsequently overcome or a waiver of ineligibility was obtained; and for whom there is no indication of potential visa misuse or ineligibility; or

(ii) (U) First-time F, M, and academic J visa applicants who are citizens or nationals of Visa Waiver Program (VWP) participating countries; and who have no prior Electronic System for Travel Authorization (ESTA) denials; who have previously traveled to the United States on ESTA; and whose visa applications reveal no derogatory or potentially derogatory information; and who have no indication of potential visa misuse or ineligibility.

(iii) (U) DHS has concurred that the Department need not require fingerprints for:

         (U) First-time and returning F, M, and academic J nonimmigrant visa applicants who are citizens or nationals of Visa Waiver Program (VWP) participating countries who have no prior denials in the Electronic System for Travel Authorization (ESTA); and who have previous ESTA travel to the United States;

         (U) Returning F, M, and academic J, nonimmigrant visa applicants who were not required to provide fingerprints before being issued a visa under the previously approved policy.

         (U) For applicants who previously submitted 10 fingerprints, you should reuse those for the current application.

(b) (U) You must verify that the applicant's SEVIS record indicates a SEVIS status of "initial" or "active," and should request an interview if you identify any discrepancies between the current and previous visa applications or wish to interview the applicant for any other reason.

(6) (U) Individual Petition-Based H, L, O, P, and Q Applicants:

(a) (U) Until December 31, 2023, an applicant for an H-1, H-3, H-4, non-blanket L, O, P, or Q visa in one of the following categories:

(i) (U) Applicants who were previously issued any type of visa; who have never been refused a visa, unless that refusal was subsequently overcome or a waiver of ineligibility was obtained; and for whom there is no indication of potential visa misuse or ineligibility; or

(ii) (U) First-time individual petition-based H-1, H-3, H-4, L, O, P, and Q visa applicants who are citizens or nationals of VWP participating countries; who have no prior ESTA denials; who have previously traveled to the United States on ESTA; and whose visa applications reveal no derogatory or potentially derogatory information; and who have no indication of potential visa misuse or ineligibility.

(iii) (U) DHS has concurred that the Department need not require fingerprints for:

         (U) First-time or returning individual petition-based H-1, H-3, H-4, L, O, P, and Q visa applicants who are citizens or nationals of VWP participating countries who have no prior ESTA denials; and who have previous ESTA travel to the United States;

         (U) Returning individual petition-based H-1, H-3, H-4, L, O, P, and Q nonimmigrant visa applicants who were not required to provide fingerprints before being issued a visa under the previously approved policy.

         (U) For applicants who previously submitted 10 fingerprints, you should reuse those for the current application.

b. (U) Waiver by Deputy Assistant Secretary for Visa Services: The Deputy Assistant Secretary for Visa Services may waive the interview requirement in individual cases after determining that such a waiver is necessary due to unusual or emergent circumstances. If you believe waiver of the interview is necessary, for these reasons, contact your CA/VO/F post liaison.

c. (U) Waiver by the Secretary in individual cases when in the national interest: The Secretary of State may waive the interview requirement in individual cases after determining that such a waiver is in the national interest of the United States. If you believe waiver of the interview would be in the national interest of the United States, but that applicant does not qualify for any other aforementioned waiver categories, contact your VO/F post liaison.

d. Unavailable

e. (U) Items Neither the Secretary nor Deputy Assistant Secretary May Waive: Neither the Secretary nor the Deputy Assistant Secretary for Visa Services may waive the interview for applicants required to appear for interview per 9 FAM 403.5-4(B) paragraph c below. 9 FAM 403.5-4(B) paragraph d exceptions remain at post's discretion.

9 FAM 403.5-4(A)(2) (U) Requirement for Interview Waiver Cases

(CT:VISA-1387; 10-14-2021)

(U) In all cases where the interview is waived, you must ensure the following requirements are met:

(1) (U) The applicant has been subjected to all appropriate biometric visa requirements as set forth in 9 FAM 303.5; and

(2) (U) The applicant is not within one of the categories in 9 FAM 403.5-4(B) below.

(3) Unavailable

(4) (U) You must conduct an interview if the applicant is within one of the categories set forth in 9 FAM 403.5-4(B) paragraph c below, for example whenever you require additional clarification as to the intentions or qualifications of the applicant or you doubt the veracity of information in the visa application. See 9 FAM 402.3-4(E).

9 FAM 403.5-4(A)(3) (U) Discontinued Interview Waiver Program Categories

(CT:VISA-723; 01-23-2019)

(U) Posts must require an interview for the following categories of individuals that had previously been covered by the IWP (unless the applicant also falls in an interview waiver category described in 9 FAM 403.5-4(A)(1) above):

(1) (U) Any applicant whose visa expired more than 12 months, and not more than 48 months, prior to the date of application;

(2) (U) Any first-time Brazilian applicant aged 14 or 15 or between 66 and 79; and

(3) (U) Any first-time Argentine applicant aged 14 or 15 or between 66 and 79.

9 FAM 403.5-4(B) (U) Cases in Which Interview May Not Be Waived

(CT:VISA-1462; 01-28-2022)

a.   (U) Eligibility for interview waiver does not automatically entitle an applicant to a waiver of the interview requirement. You must interview any interview waiver-eligible applicant who you believe should be interviewed to assess their eligibility, or those who may be from high-threat or high-fraud areas. Review all source information and liaise with other agencies at post to remain aware of changing threat information.

The remaining content of this Subchapter is unavailable.

 

 

 

UNCLASSIFIED (U)