9 FAM 403.7
(U) NIV Adjudication
(Office of Origin: CA/VO)
9 FAm 403.7-1 (U) niv adjudication
9 FAM 403.7-2 (U) Adjudicating Officer Responsibilities
(U) Adjudicating officers have the responsibility to decide the following:
(1) (U) Is the Applicant Qualified Under INA 101(A)(15)? With limited exceptions, all visa applicants are presumed to be immigrants (and thus not eligible for an NIV until they satisfy you that they qualify for one of the NIV categories defined in INA 101(a)(15). When adjudicating NIV applications, you can find the standards for qualifying for an NIV in the relevant subsections of 101(a)(15) and corresponding regulations and FAM guidance, not in 214(b) itself. See 9 FAM 302.1 for information about 214(b) refusals.
(2) (U) What is the Correct Classification? You must determine the appropriate NIV classification for the applicant’s primary purpose for coming to the United States, in accordance with INA 101(a)(15). For example, you should classify as F-1 or M-1 an applicant seeking to enter the United States as a student who desires to make a tourist trip of not more than 30 days within the United States before entering an approved school. Also, when a family member’s primary purpose to come to the United States is to accompany the principal, the classification of the accompanying family member is either of a derivative of the principal if a derivative category exists, or as a B-2, if not. This is the case, even if the accompanying family member decides to attend school. See 9 FAM 402.1.
(3) (U) Is the Applicant Credible? You must assess the credibility of the applicant and the evidence submitted to determine qualifications under 101(a)(15). You must be satisfied that the applicant will engage in the activities authorized under that NIV classification, that they will abide by the conditions of that NIV category and will maintain lawful status.
(4) (U) Have All Necessary Clearances Been Conducted? You must conduct as complete a clearance as necessary to establish the eligibility of an applicant to receive a visa. See 9 FAM 403.6 and 9 FAM 307.3-2.
(7) (U) Is There a Waiver Available for an Ineligible Applicant? There is no waiver available for refusals under INA 214(b) and INA 221(g). DHS has the authority to waive most IV and NIV ineligibilities. INA 212(d)(3)(A) waivers in NIV cases require an initial waiver recommendation from you or the Department. See 9 FAM 305.4-3, for information on NIV waivers under INA 212(d)(3)(A), and 9 FAM 305.2 and 9 FAM 305.3 for IV and NIV waivers.
9 FAM 403.7-3 (U) Adjudication Procedures
(U) Once an application has been executed, you must either issue the visa or refuse it. You may not temporarily refuse, suspend, or hold the visa for future action. If you refuse the visa, you must inform the applicant of the provisions of law on which the refusal is based, and of any statutory provision under which administrative relief is available. See 9 FAM 403.10 for NIV refusal procedures and 9 FAM 305.3 for waiver relief.
9 FAM 403.7-3(A) (U) Use of Application Forms
b. (U) Your review of the DS-160 will be recorded electronically. Your electronically recorded review of the application will indicate which officer determined the eligibility and proper classification of the applicant.
c. (U) If you have accepted paper-based NIV application forms pursuant to 9 FAM 403.2-5(B)(1) you must initial all paper application forms. Your initials indicate that you have determined the eligibility and proper classification of the applicant unless the visa is refused, and a notation of the refusal is made on the application.
d. (U) In addition to information concerning the issuance or refusal of the visa, the electronic record of the visa application in the NIV or IVO system includes the following information:
(1) (U) Record of clearances obtained, including the dates;
(2) (U) Record of revocation and cancellation of visa;
(3) (U) Any further information which would be helpful in reaching a decision if the applicant reapplies for a visa (i.e., a case note that the applicant is well and favorably known to you might eliminate the need for requests for other evidence of eligibility); and
(4) (U) Record of re-issuance of visa in the event a previous visa is spoiled or cancelled.
9 FAM 403.7-3(B) (U) Requesting Additional Information
9 FAM 403.7-3(B)(1) (U) Supporting Documentation
a. (U) If additional data is needed to supplement the information contained on Form DS-160 so that you can determine the eligibility of an applicant, such data should be obtained by telephone, mail, email, or during the interview. Pertinent information should be recorded or scanned in the NIV system.
b. (U) Unlike IV applicants, NIV applicants in most categories are not required to submit extensive documentation in support of their cases and you should not routinely require submission of documents. Especially if local documents are unreliable, you should question the utility of requiring them of applicants as they add no value to the NIV adjudication. Remember that the burden of proof for establishing eligibility for the NIV classification lies with the applicant.
c. (U) You should not use a request for additional documentation as a way to postpone your decision on a case, especially if the documentation you are requesting is not required for that visa category or not reliable in that country. You should use refusals under INA 221(g) for additional documentation sparingly.
d. (U) You should have a policy that officers review their own 221(g) cases to ensure consistency in adjudication. It is also a useful training tool, as officers often quickly learn that the additional documentation they request may not assist in determining eligibility.
e. (U) Pertinent information should be recorded in the case notes, and any pertinent documentary evidence submitted by the applicant should be scanned into the applicant’s case if relevant to the adjudication.
f. (U) You should avoid routinely retaining documents, especially originals, that are submitted in support of an NIV application which do not directly serve to establish the applicant’s eligibility. These documents may be returned to the applicant or destroyed.
g. (U) Minor errors discovered during intake of an applicant’s DS-160, including but not limited to spelling mistakes, incorrect dates, etc., may be noted in the appropriate remarks section of the DS-160 and should be updated by you with the correct information in the NIV system, if necessary. If a correction is made, a remark must also be added to the case notes explaining the revision. A remark may be added to the DS-160 but is not required. However, if the correction is material to adjudication or would result in additional unanswered questions, this is a major correction, and you must refuse the case 221(g) and have the applicant submit a new or revised application.
9 FAM 403.7-3(B)(2) (U) Medical Examinations for NIV Applicants
(U) Medical examinations generally are not required for NIV applicants. You may, however, require an NIV applicant to undergo a medical examination if you have reason to believe that the applicant may be ineligible for a visa under INA 212(a)(1). See also 9 FAM 302.2 for further information on medical examinations.