9 FAM 403.10
(U) NIV Refusals
(Office of Origin: CA/VO/L/R)
9 fAM 403.10-1 (U) Statutory and REgulatory Authorities
9 FAM 403.10-1(A) (U) Immigration and Nationality Act
(U) INA 214(b) (8 U.S.C. 1184(b)); INA 221(g) (8 U.S.C. 1201(g)).
9 FAM 403.10-1(B) (U) Code of Federal Regulations
(U) 22 CFR 41.121.
9 FAM 403.10-2 (U) In General
(U) The determination of a nonimmigrant applicant's classification and eligibility to receive a visa is your statutory responsibility and may not be delegated to any other officer (except as provided in 22 CFR 41.111(b)) or to a member of the clerical staff.
9 FAM 403.10-2(A) (U) Visa to be Issued or Refused
a. (U) A nonimmigrant visa (NIV) must be issued or refused in all cases once an application is executed, except when the Secretary has ordered you to discontinue issuing visas under INA 243(d). See 9 FAM 403.2-3 for the definition of "making a visa application." The visa refusals must be based on legal grounds; that is, on the provisions of INA 212(a), INA 212(e), INA 212(f), INA 214(b), INA 214(l), INA 221(g), INA 222(g), or some other specific legal provision. A quasi-refusal (e.g., P6C, P6E, etc.) may not be used as the sole ground for a refusal. See 9 FAM 302 for grounds of ineligibility. See 9 FAM 601.12 for a discussion of INA 243(d).
b. (U) You should only make a formal finding of ineligibility in the context of a visa application or revocation of an existing visa. A “hard” refusal code entry should only be placed in the Consular Lookout and Support System (CLASS) if you are denying or revoking a visa.
9 FAM 403.10-2(B) (U) Grounds for Refusal
9 FAM 403.10-2(B)(1) (U) Applying Grounds for Refusals and Ineligibilites
a. (U) Establishing Eligibility for Nonimmigrant Status:
(1) (U) INA 214(b) provides that every visa applicant is presumed to be an immigrant until he or she establishes eligibility for to nonimmigrant status under INA 101(a)(15) . A finding that an applicant does not meet the eligibility requirements for the classification sought and is therefore not a nonimmigrant under INA 101(a)(15) cannot be waived.
(2) (U)However, INA 214(b) is not a permanent ineligibility. The fact that a visa applicant was unable to establish nonimmigrant status at one time does not preclude such an applicant from subsequently qualifying for a visa by showing a change in circumstances.
(3) (U) For more information on applying INA 214(b) see 9 FAM 302.1-2, Presumption of Immigrant Status- INA 214(b).
b. (U) Grounds of Ineligibility:
(1) (U) Grounds of Ineligibility Not Applicable to Nonimmigrants: Certain grounds of ineligibility do not apply to some nonimmigrants. For example, some nonimmigrants are exempt from the provisions of INA 212(a)(3)(D) (membership in a totalitarian party), INA 212(a)(5)(A) (labor certification requirements), INA 212(a)(5)(B) (unqualified physicians), INA 212(a)(5)(C) (uncertified health care workers), INA 212(a)(8)(A) (ineligible for citizenship), and INA 212(a)(10)(A) (practicing polygamists).
(2) (U) Grounds of Ineligibility Not Applicable to A and G Applicants: INA 102 provides broad exemptions from grounds of inadmissibility for “A” and “G” applicants, except domestics and personal employees. Upon a basis of reciprocity, INA 212(d)(8) also provides broad exemptions for foreign government officials in transit. These are not in the nature of waivers or other discretionary acts; they provide statutory immunity from ineligibility under the special provisions. INA 212(d)(8) does not provide exemption for INA 212(a)(3)(A), INA(a)(3)(B), INA(a)(3)(C), or INA(a) (7)(B).
(3) (U) Recommending Waivers: For aliens found ineligible under non‑exempted provisions of INA 212(a), you have discretionary authority under INA 212(d)(3)(A) to recommend to the Department of Homeland Security (DHS) a waiver of the specific ground of ineligibility.
c. (U) Failure to Appear, Withdrawal, or Abandonment:
(1) (U) Applicant Who Fails to Appear for Interview at Post:
(a) (U) No Show Cases: If an applicant has failed to make a visa application as delineated in 9 FAM 403.2-3, enter as a case remark: "No Show case: Application was never made per 9 FAM 403.2-3" and delete the case from the NIV system. The case must not be refused. 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.
(b) (U) Executed Application Cases: If an applicant who is not eligible for interview waiver fails to appear for an interview but has met the requirements for making an application per 9 FAM 403.2-3, refuse the case under INA 221(g) with case notes explaining that the applicant met the requirements for making an application but failed to appear for an interview.
(2) (U) Applicants Refused If Application Withdrawn: If an applicant withdraws a visa application while it is pending adjudication, you must refuse the case under INA 221(g) with case notes indicating why the action was taken. The case must not be deleted.
(3) (U) Applicants Refused If Visa Abandoned: If the case has been adjudicated (print authorized), but not printed, and the applicant subsequently changes his or her mind, deciding not to travel, you must refuse the case under INA 221(g) with case notes indicating why the action was taken. The case must not be deleted.
(4) (U) Reactivating Cases: Please see 9 FAM 403.10-4(A) paragraph c for information on reactivating cases refused under INA 221(g).
9 FAM 403.10-2(B)(2) (U) Refusals Based on Entries in Lookout Systems by Other Agencies
a. (U) Effect of Definitive DHS Inadmissibility Findings:
(1) (U) DHS findings of inadmissibility generally are entered into TECS and these entries pass electronically into the Department’s CLASS lookout system.
(2) (U) If you determine that an alien is identifiable with the subject of a DHS-generated lookout entry indicating a definitive determination of inadmissibility, excluding INA 212(a)(3) inadmissibilities , you may assume that the finding was correct and may refuse the application under the particular INA section indicated by the DHS lookout entry, unless the inadmissibility is non-permanent and can be overcome through changed circumstances (e.g., medical or public charge inadmissibility) or the entry relates to an inadmissibility that only applies at the port of entry (POE) and is not a basis for a visa refusal (e.g., INA 212(a)(7)(A)).
(3) (U) Except in cases involving a non-permanent inadmissibility and in cases of 212(a)(3) grounds other than 212(a)(3)(A)(2), you should not look behind a definitive DHS finding or re-adjudicate the alien’s eligibility with respect to the provision of inadmissibility described in the DHS lookout entry.
b. (U) Other Agency Notes:
(1) (U) U.S. Customs and Border Protection (CBP) officers sometimes make notes regarding a finding of inadmissibility or derogatory information regarding an alien on Form I-275, Application for Withdrawal of Application/Consular Notification), or in records contained in the DHS IDENT fingerprint system. A typical example of such notes is “Subject is inadmissible under INA 212(a)(6)(C)(i)” (or some other ground). Such notes, unless they are supported by the corresponding definitive DHS CLASS entry (i.e., not “quasi” – see 9 FAM 403.10-3(C)(2) below for procedures if there is a corresponding quasi-refusal), do not have a binding effect on you. In such cases, you must review the information in the Form I-275 and make a determination on visa eligibility, supported by corresponding case notes. If there is a corresponding definitive CLASS entry, you must proceed as directed in paragraph a above.
(2) (U) The factual summary that may be included in a Form I-275 (for example, the applicant’s answers to the CBP officer’s questions), sometimes will permit you to make a visa refusal or to pursue a finding of ineligibility for a visa under the 30/60-day rule (see 9 FAM 302.9-4(B)(4) for more information on the 30/60-day rule).
(3) (U) The above policy that there must be a corresponding definitive DHS CLASS entry for there to be a binding effect also applies to notes in records contained in the FBI NGI fingerprint system (e.g., “CHARGE 1-ATTEMPTED ENTRY BY FRAUD 8 USC 1182 (A)(6)(C)(I)”).
9 FAM 403.10-2(B)(3) (U) Refusals of Out-of-District Applicants
a. (U) 221(g) Refusals: You must adjudicate all applications rather than refusing them under INA 221(g) solely because the applicants are out-of-district. Refusing an applicant simply because he is out of district is a missed opportunity and a waste of post and applicants' time.
b. (U) 214(b) Refusals of Out-of-District Applicants:
(1) (U) Refusing an applicant under INA 214(b) solely for out-of-district reasons is not appropriate. Section 214(b) requires that the applicant demonstrate both entitlement for a specific visa classification and absence of immigrant intent (see 9 FAM 401.1-3(E)). Consular officers can still determine whether the alien qualifies for a particular visa class, and whether there is immigrant intent on the part an out-of-district applicant.
(2) (U) Certainly, an out-of-district applicant may alert you to possible fraud or, at the least, forum shopping. In addition, it may be more difficult for an out-of-district applicant to overcome the burden of proof. However, you should not refuse an applicant solely because he or she is applying outside of the consular district where he or she resides.
(3) (U) In addition, most NIV applicants must establish that they have a residence abroad that they do not intend to abandon. That residence need not be in the country where they are applying. It is incorrect to refuse an out-of-district applicant solely because his or her ties are to a different country abroad. However, if the applicant is applying for a visa category that requires that he or she demonstrate a residence abroad that he or she does not intend to abandon, and the applicant is unable to do so, you should refuse the case under 214(b) because the applicant has not demonstrated that he or she qualifies for the visa for which he or she applied.
(4) (U) Some nationalities described as "homeless", residents of countries where no U.S. consular services are available, have specific posts designated for their applications with appropriate language-trained officers. When officers are concerned about document, language and translation barriers, posts should let the public and prospective applicants know that lack of a common language could negatively affect an application. Posts may want to use this language on their websites: "Applicants from outside this office's consular district may apply for visas. However, you should be aware that language difficulties and interviewing officers' unfamiliarity with local conditions in other countries may make it more difficult to demonstrate your qualifications for a visa here than in your home district or at a post designated for your application."
9 FAM 403.10-3 (U) Refusal Procedures
9 FAM 403.10-3(A) (U) Refusal Cases
(U) When an alien is found ineligible to receive a visa, you must take the steps listed in notes 9 FAM 403.10-3(A) through 403.10-3(D).
9 FAM 403.10-3(A)(1) (U) Inform Alien Orally and Return Certain Documents
b. (U) You must return to the applicant all documents not pertinent to the refusal or indicative of possible ineligibility. Letters and other documents addressed to an officer or the post should be retained and either filed or destroyed.
c. (U) The manner in which visa applicants are refused can be very important in relations between the post and the host country, as well as to the United States’ image to the applicant and the broader population. You should be courteous at all times and must be careful not to appear insensitive.
d. (U) Explanations of why a visa could not be issued need not be lengthy. You should explain the law and the refusal politely and in clear terms, providing a citation of the legal section relied upon. Use of jargon or obscure terms can create confusion, frustration and, often, additional work in the form of congressional and public inquiries. An example: In a case involving a refusal under INA 214(b) for insufficient ties, it is essential that you tell the applicant that the reason for the refusal is that he or she has not persuaded you that he or she will return to his or her country. Fitting a certain demographic profile ("young", "single", etc.) is not grounds for a visa refusal. In a 214(b) refusal, the denial must always be based on a finding that the applicant’s specific circumstances failed to overcome the intending immigrant presumption. Written 214(b) and 221(g) refusal letters are more than mere formalities; they can be an effective method of conveying information to the applicant.
e. (U) You must not discourage the visa applicant from reapplying, even if you believe that eventual issuance of a visa is unlikely. You should make clear to applicants that they may reapply if they believe they genuinely qualify since there is no formal appeal of an NIV refusal. Efforts to control reapplications must not unduly restrict applicants' ability to reapply, although they may be warned that applicants who have not yet had the opportunity to apply may be scheduled before they are rescheduled.
f. (U) Exceptions to Notice Requirement: INA 212(b), which requires you to provide the applicant with a timely written notice in most cases involving a 212(a) refusal, also provides for a waiver of this requirement. However, only the Department may grant a waiver of the written notice requirement. Furthermore, although 212(b) also exempts findings of ineligibility under INA 212(a)(2) and (3) from the written notice requirement, we expect that such notices will be provided to the alien in all 212(a)(2) and (3) cases unless:
(1) U) We instruct you not to provide notice;
(2) (U) We instruct you to provide a limited legal citation (i.e., restricting the legal grounds of refusal to 212(a)); or
(3) (U) In response to a request, you receive permission from us not to provide notice.
9 FAM 403.10-3(A)(2) (U) Inform Applicant and Attorney in Writing
(U) In any NIV case involving a refusal under any provision of the law, you must provide the applicant and any attorney of record a written refusal.
(1) (U) 214(b) Refusal Letter: In the case of an NIV refusal based on 214(b), posts are required to provide applicants with the Department-approved letter appropriate for the applicant’s circumstances. The prescribed refusal letters are found at 9 FAM 403.10-3(A)(3). 9 FAM 403.10-3(A)(3) paragraph a below contains the refusal letter appropriate for those applicants being denied for lack of a residence abroad. 9 FAM 403.10-3(A)(3) paragraph b below contains the refusal letter appropriate for those visa classes subject to 214(b), but not the residence abroad requirement.
(2) (U) 221(g) Refusal Letter: For an INA 221(g) NIV refusal, posts may draft the refusal letter in the manner they deem appropriate and without Departmental approval. However, the letter must:
(a) (U) Explicitly state the provision of the law under which the visa is refused;
(b) (U) Not state that the denial is “pending”, “temporary”, or “interim” or that the case is suspended, although it may reference further administrative processing of the case;
(c) (U) Neither encourage nor discourage the applicant from reapplying; and
(d) (U) Include the following language:
Please be advised that for U.S. visa purposes, including ESTA (the ESTA website), this decision constitutes a denial of a visa.
(3) (U) 212(a) NIV refusals: Posts may draft the refusal letter in the manner they deem appropriate and without Departmental approval. However, the letter must:
(a) (U) Explicitly state the provision of the law under which the visa is refused, unless instructed or authorized to do otherwise by the Department;
(b) (U) Neither encourage nor discourage the applicant from reapplying; and
(c) (U) Inform the applicant whether a waiver is available.
(4) (U) Alternatively, for INA 221(g) and INA 212(a) refusals, posts may elect to use the optional refusal letter found at 9 FAM 403.10-3(A)(3) paragraph c below, or they may choose to modify the letter as necessary. If posts use a modified version, the letter must meet the criteria listed in paragraph a of this note.
9 FAM 403.10-3(A)(3) (U) Refusal Letters in 214(b), 221(g) and Other Cases
a. Refusal Letter for Denials Under INA 214(b) for Applicants Who Fail to Establish Ties:
You may use the Failure to Establish Ties Letter to inform an applicant of the refusal under INA 214(b). A sample of the Failure to Establish Ties Letter is provided is provided below.
This is to inform you that you have been found ineligible for a nonimmigrant visa under Section 214(b) of the U.S. Immigration and Nationality Act. A denial under Section 214(b) means that you were not able to demonstrate that your intended activities in the United States would be consistent with the classification of the nonimmigrant visa for which you applied.
While nonimmigrant visa classifications each have their own unique requirements, one requirement shared by many of the nonimmigrant visa categories is for the applicant to demonstrate that he/she has a residence in a foreign country which he/she has no intention of abandoning. Applicants usually meet this requirement by demonstrating that they have strong ties overseas that indicate that they will return to a foreign country after a temporary visit to the United States. Such ties include professional, work, school, family, or social links to a foreign country. You have not demonstrated that you have the ties that will compel you to return to your home country after your travel to the United States.
Today’s decision cannot be appealed. However, you may reapply at any time. If you decide to reapply, you must submit a new application form and photo, pay the visa application fee again, and make a new appointment to be interviewed by a consular officer. If you choose to reapply, you should be prepared to provide information that was not presented in your original application, or to demonstrate that your circumstances have changed since that application.
b. (U) Refusal Letter for Denials Under INA 214(b) for Applicants Who Fail to Qualify For Reasons Other Than Failure to Show Ties: You may use the Other INA 214(b) Refusal Reasons Letter for an applicant who you are denying under INA 214(b) for reasons other than failure to show ties. The following is a sample of the Other INA 214(b) Refusal Reasons Letter:
This is to inform you that you have been found ineligible for a nonimmigrant visa under Section 214(b) of the U.S. Immigration and Nationality Act. A denial under Section 214(b) means that you did not meet the requirements of the classification of the nonimmigrant visa for which you applied.
Today’s decision cannot be appealed. However, you may reapply at any time. If you decide to reapply, you must submit a new application form and photo, pay the visa application fee again, as applicable, and be interviewed by a consular officer. If you choose to reapply, you should be prepared to provide information that was not presented in your original application, or to demonstrate that your circumstances have changed since that application.
c. (U) Optional Refusal Letter: You may use the Optional Refusal Letter to inform an applicant of the refusal. The following is sample text of the Optional Refusal Letter:
This office regrets to inform you that your visa application is refused because you have been found ineligible to receive a visa under the following section(s) of the Immigration and Nationality Act. The information contained in the paragraphs marked with "X" pertains to your visa application. Please disregard the unmarked paragraphs.
__ Section 212(a)(1) health-related grounds.
__ Section 212(a)(4) which prohibits the issuance of a visa to anyone likely to become a public charge.
__ Section 212(a)(2) which prohibits the issuance of a visa to anyone who has committed a crime involving moral turpitude.
__You are eligible to seek a waiver of the grounds of ineligibility.
__ No waiver is available for the grounds of ineligibility.
9 FAM 403.10-3(A)(4) (U) Enter Refusal Data into NIV System
d. (U) Remarks attached to a case reside in the CCD and are accessible to posts worldwide, as well as to certain partner agencies, such as CBP at POE. Your notes must be written in a professional manner: clearly and legally valid. Avoid using post-specific notations, non-English words, and making irrelevant remarks. If the refusal seems counterintuitive, you should comment on the factors that led to the refusal.
9 FAM 403.10-3(A)(5) (U) Explore Possibility of Relief
(U) Waivers are not available for INA 214(b) ineligibilities, but the applicant is free to re-apply for a visa. INA 221(g) refusals require the applicant to wait for the results of additional administrative processing or comply with a request for additional documentation or information within one year of the visa interview. If the case involves a Category I refusal, you must explain whether or not administrative relief (a waiver or other means, such as parole) is available. 9 FAM 303.3-3(B)(1) contains a list of lookout codes and states whether the codes are Category I or Category II.
9 FAM 403.10-3(A)(6) (U) Additional Procedure When Refusing Applicants Who Possess a Valid Form I-94, Arrival and Departure Record
a. (U) In addition to recording the refusal electronically, officers, especially officers at posts in Canada and Mexico, should take additional steps in certain cases involving aliens who might seek to take advantage of the automatic visa revalidation provisions of 22 CFR 41.112(d) but who are not eligible to do so due to their unsuccessful visa application.
c. (U) You may only revoke an unexpired visa if the grounds set forth in 22 CFR 41.122(a) and 9 FAM 403.11 are present.
9 FAM 403.10-3(A)(7) (U) Indicating Nonimmigrant Visa Refusals in Passports
(U) Do not place a stamp indicating “application received,” or any other marking in an applicant’s passport in connection with a visa application. With issuance and refusal data now available to all posts through the Consular Consolidated Database (CCD), there is no longer a need to alert interviewing officers to previous refusals by making a marking in an applicant’s passport. In addition, CCD information is now available at secondary in ports of entries (POEs) and at other DHS offices. Officers at posts in Canada and Mexico should ensure they follow the procedures in 9 FAM 403.10-3(A)(6) above for refusing applicants who may have been eligible for automatic visa revalidation at POEs.
9 FAM 403.10-3(B) (U) Procedures in Cases Refused for Advisory Opinions or for Other Reasons
a. (U) Advisory Opinion Requested:
(1) (U) If the Department’s opinion has been requested, a visa may not be issued until the opinion has been officially rendered and communicated to the requesting post.
(3) (U) The post should use a tickler system as a reminder to send the Department a follow-up request for a response after a reasonable period of time has elapsed. If you determine on the basis of the Department’s advisory opinion that the alien is ineligible under a provision of INA 212(a), 212(e), 214(b), or some other specific legal provision, you must formally refuse the alien under the pertinent section of the law. Under no circumstances may a final resolution of the question of eligibility be made before the Department’s advisory opinion is received. (See 9 FAM 403.10-3(C)(1) below and 9 FAM 403.10-3(B) paragraph a(1), above.)
b. (U) Other Reasons: You should also refuse the visa under INA 221(g) and make clear case notes in other situations where the alien has formally applied, but a final determination of admissibility is deferred for additional evidence, further clearance, a namecheck, or some other reason.
9 FAM 403.10-3(C) (U) Quasi-Refusal Cases
9 FAM 403.10-3(C)(1) (U) Entering a Quasi-Refusal
a. (U) A quasi-refusal, by definition, is not a refusal. It is not a determination of eligibility. You cannot conclude a case by simply entering a quasi-refusal; you must enter a “hard” refusal or issue the visa. You may not deny or revoke a visa based solely on “quasi-ineligibility.” If an alien applies for a visa, the alien’s eligibility must be definitively resolved.
b. (U) If you obtain derogatory information outside the context of an application or revocation, you should enter the alien’s name in the CLASS lookout system under the appropriate “P” (“quasi-refusal”) code corresponding to the suspected or presumed inadmissibility. The alien’s eligibility should then be resolved if and when the alien applies for a visa.
c. (U) You May Enter a Quasi-Refusal in Only Two General Cases:
(1) (U) If you obtain derogatory information outside the context of an application or revocation (see 9 FAM 403.11-4(B)(1)); or
d. (U) Not entering a hard refusal also affects posts’ workload statistics since those cases will not be reported as adjudicated.
f. (U) On occasion, an alien may learn informally of a possible ineligibility. If, after being informed of apparent ineligibility, the alien decides not to make a formal application, then that particular situation does not constitute a formal refusal, and it must not be reported as such by the post. A quasi-refusal entry, however, may be appropriate. If so, the post must enter the name of the alien into Consular Lookout and Support System (CLASS) as indicated in 9 FAM 303.3.
9 FAM 403.10-3(C)(2) Unavailable
9 FAM 403.10-3(D) (U) Supervisory Review of NIV Refusals
9 FAM 403.10-3(D)(1) (U) NIV Refusal Review Procedures
a. (U) Consular mangers must review as many nonimmigrant visa (NIV) refusals as is practical, but not fewer than 20% of refusals. Such a review is a significant management and instructional tool and is useful in maintaining the highest professional standards of adjudication. It helps ensure uniform and correct application of the law and regulations.
b. (U) Reviewing officers should pay particular attention to refusals of less experienced officers. The less visa adjudication experience an officer has, the greater the percentage of refusals the reviewing officer should review. As an officer gains experience and competence over time, the percentage of refusals reviewed can decline as the reviewing officer deems appropriate.
c. (U) The reviewing officer should be the adjudicating consular officer’s direct supervisor, even if that supervisor does not have a consular commission and title. The reviewing officer must review the case and either confirm or disagree with the refusal. To evaluate performance, the supervisor needs to see a regular and representative sampling of the adjudicating officer’s work. The review should focus on, but is not limited to, understanding the requirements of INA 214(b) and ensuring consistent adjudications among officers, the potential overuse of 221(g) refusals when 214(b) should be applied, the clear articulation of 214(b) refusals, and verification that 212(a) refusals satisfy applicable law and regulations. While reviewing officers without recent consular experience cannot be expected to know the breadth and depth of visa statutes and regulations, the adjudicating officer should be able to cite Departmental guidance (the INA, FAM, ALDACs, etc.) in support of the refusal. The reviewing officer must indicate his or her decision for all refusals reviewed by marking the appropriate box in the NIV Adjudication Review report in the Consular Consolidated Database (CCD). 22 CFR 41.121(c) specifies that a refusal must be reviewed without delay; that is, on the day of the refusal or as soon as is possible. See also 9 FAM 306.2-2(A) paragraph b(2).
d. (U) The Regional Consular Officer (RCO) for posts with a single consular officer should review all Category I refusals. This review can be completed via the NIV Adjudication Review report in the CCD. The RCO must also review a random sample of at least 20 percent of the refusals adjudicated during the RCO’s visit to post, and the RCO must include the quality of adjudication as a regular topic of discussion. The RCO must meet with the adjudicating officer and his or her supervisor and review with them a sampling of refused NIV cases.
9 FAM 403.10-3(D)(2) (U) Reviewing Officer Non-Concurrence with Refusal
a. (U) If a reviewing officer with a consular commission and title does not concur with the refusal, he or she may assume responsibility and re-adjudicate the case. The reviewing officer must discuss the case fully with the original adjudicating officer before taking any action. The reviewing officer must not reverse a 214(b) refusal without re-interviewing the applicant in person or by phone, as information gained during the interview may be an essential component of any 214(b) decision. If the disagreement involves a matter of law, the reviewing officer may assume personal responsibility for the case and reverse the decision without speaking with the applicant, after discussing with the original adjudicating officer. The reviewing officer should enter a note in the NIV Adjudication Review in the CCD that explains the reason for overturning the refusal.
b. (U) A reviewing officer without a consular commission and title may not issue or refuse a visa. Therefore, if such a reviewing officer does not concur with the refusal, he or she must:
(1) (U) Discuss the basis for the original refusal with the adjudicating officer in a good faith attempt to arrive at a mutually acceptable final adjudication of the application.
(2) (U) If such a discussion cannot resolve the issue and post is part of the RCO program, the RCO should be consulted for his or her insight with a view to coming to a mutually agreed upon adjudication.
(3) (U) If the difference of opinion turns on a legal or procedural issue that cannot be resolved by consulting Departmental guidance at post (the INA, FAM, Consular Management Handbook, cable guidance, etc.), post should seek Visa Office guidance (legal questions should be referred to the Advisory Opinions Division (CA/VO/L/A) and procedural questions to the Office of Field Operations (CA/VO/F).
(4) (U) If, despite these efforts, no mutually agreed upon adjudication can be achieved, the refusal stands. If this occurs, , the reviewing officer should add a note of discrepancy in the case notes and in the NIV Adjudication Review report in the CCD.
9 FAM 403.10-4 (U) Overcoming or Waiving Refusals
(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. It is in keeping with the spirit of American justice and fairness. With regard to cases involving classified information, the cooperation accorded the applicant must, of course, 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 403.10-4(A) (U) Reapplication Procedures
a. (U) Previously refused visa applicants may reapply any time, using the same procedures as first-time applicants. See 9 FAM 403.2-6(A) for more information on managing applications from previously refused applicants.
b. (U) Reactivation of Case Refused Under INA 221(g): An applicant who has been refused under INA 221(g) need not complete a new NIV application form, or pay the machine readable visa (MRV) fee again, if less than one year has elapsed since the latest refusal. When the requested information is submitted by the applicant or the necessary clearances received, you should retrieve the original Form DS-160 from post’s files, note the new information or results of the clearance process, and issue or refuse the visa. If one year or more has elapsed since the latest refusal, the applicant must submit a new Form DS-160 and pay the MRV fee again in order for the case to proceed. If the cause of the delay leading to the 221(g) refusal is a lack of U.S. Government action, or U.S. Government error, the period of reapplication is extended indefinitely. Hence, the MRV fee is not charged again when the application is pursued.
9 FAM 403.10-4(B) (U) Overcoming a Refusal
9 FAM 403.10-4(B)(1) (U) Overcoming Post Refusals
a. (U)You should find that an applicant has overcome an nonimmigrant visa (NIV) refusal under INA 221(g) in two instances: when the applicant has presented additional evidence, allowing you to re-open and re-adjudicate the case, or when the case required additional administrative processing, which has been completed. An NIV applicant missing a Form I-20 when applying for an F1, for instance, should be refused INA 221(g) pending that certificate (see 9 FAM 403.10-3(A) for guidance on INA 221g refusals). When the applicant returns with the document, you should overcome the previous refusal, allowing the case to be adjudicated.
b. (U) Similarly, if an applicant refused under INA 212(a)(4), subsequently presents sufficient evidence to overcome the public charge inadmissibility, you should process the case to completion.
d. (U) In general, you should not find that an applicant has overcome a refusal under INA 214(b). Most INA 214(b) cases 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(B)). As such, the only way to reassess the applicant's eligibility would be for the applicant to reapply. In this situation, you should create a new case in the system.
e. (U) However, Overcome/Waive (O/W) may be appropriate for INA 214(b) cases when a supervisor believes the INA 214(b) refusal was in error; for example, if you did not believe the applicant fit the standards of the particular NIV classification for which he or she had applied (see 9 FAM 302.1-2(B)(1)). If a supervisor overcomes such a case he or she should discuss it with the refusing officer and take personal responsibility for the case. See 9 FAM 403.10-3(D) for adjudication review procedures.
9 FAM 403.10-4(B)(2) (U) Overcoming a Refusal Based on a DHS Finding
(U) If you refuse an application based on a definitive DHS lookout entry and DHS subsequently determines that the finding was erroneous and deletes its entry, then you may process the case to conclusion and should send in a Visas CLOK cable requesting deletion of any post-originated CLASS entry which may have been made as a result of the DHS entry. If, notwithstanding DHS’ removal of the entry, you believe that the facts on which DHS entry were based justify a finding of inadmissibility, you should refer the case to the Department for an advisory opinion (AO).
9 FAM 403.10-4(C) Waiving a Nonimmigrant Visa Inadmissibility
(U) 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 for IV and NIV waivers.)