UNCLASSIFIED (U)

9 FAM 403.12

(U) NIV Adjudication review

(CT:VISA-1151;   09-14-2020)
(Office of Origin:  CA/VO)

9 FAM 403.12-1  (U) NIV Adjudication Review Process

(CT:VISA-1069;   05-04-2020)

a. (U) Overview: Consular managers and other reviewing officers must review nonimmigrant visa (NIV) issuances and refusals in accordance with the Secretary of State's guidance to protect national security, to ensure compliance with laws and procedures, to protect against fraud, and to help maintain the highest professional standards of adjudication.  To meet these goals, reviewing officers must utilize the NIV Adjudication Review Form in the CCD to review adjudications in a timely manner.  Please note: Due to compatibility issues, managers and reviewing officers must run the NIV Adjudication Review Form in the CCD using Google Chrome.  The report does not display properly on other browsers and may prevent the reviewer from seeing all required cases.

b. Unavailable

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c.  (U) NIV Adjudication Review Form: At a minimum, reviewing officers must use this tool to conduct adjudication reviews on the FAM Standard Set plus any additional cases required to be reviewed for new officers pursuant to 9 FAM 403.12-3 paragraph (b) and 9 FAM 403.12-4 paragraph (b).  A reviewing officer must review each case in the FAM Standard Set and confirm or disagree with the adjudication.  See 9 FAM 307.4, Supervisory Duties, for information regarding supervisory review and Visa Lookout Accountability (VLA) violations.  The NIV Adjudication Review Form permits reviewing officers to review all adjudications or tailor reviews by officer, visa class, and other factors. 

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9 FAM 403.12-2  (U) WHO CONDUCTS Adjudication Review?

(CT:VISA-831;   06-03-2019)

a. (U) The Chain of Command Rule:  The reviewing officer must be in the adjudicating officer’s supervisory chain of command.  In general, except as described in paragraph (c) below, the reviewing officer should be the adjudicating officer’s direct supervisor, regardless of whether the reviewing officer has a consular commission and title.

b. (U) If the chain of command rule of the previous paragraph results in a reviewing officer who does not have a consular commission and title (some Deputy Chiefs of Mission, for example, may not be authorized to adjudicate visas), that officer should nevertheless review adjudications.

c.  (U) In multi-post missions, the Country Consular Coordinator (CCC) – often the Minister Counselor of Consular Affairs (MCCA) – should review each constituent post’s senior consular officer’s adjudications, in lieu of the Principal Officer, even if the CCC is not the senior consular officer’s direct supervisor.  A multi-post mission may request an exception to this rule if the CCC is not in the best position to review the adjudications of a constituent post’s senior consular officer.  Such a request should be made to CA/VO/F (consult Who's Who on CAWeb to identify the holder of the NIV adjudication review portfolio) and should include a clear rationale for the exception.

d. (U) A Regional Consular Officer (RCO), at those posts covered by the RCO program, is not in the adjudicating officer’s chain of command and does not have supervisory authority over consular officers at post.  Therefore, RCOs may not perform the adjudication review function and do not have that authority in the CCD.  However, the RCO does provide a consultative role to both the adjudicating officer and the supervisor in adjudication review.  In preparation for their visits, RCOs must review all issuances over Category I hits as well as a selection of issuances and refusals by each officer at post.  Potential VLA violations, as well as other cases of concern, must be raised to post and reported, preferably by post, to the Visa Office as required.  The RCO must meet with adjudicating officers and include the quality of adjudication as a regular topic of discussion.

9 FAM 403.12-3  (U) Supervisory Review of NIV Refusals

9 FAM 403.12-3(A)  (U) NIV Refusal Review Procedures

(CT:VISA-1151;   09-14-2020)

a. (U) Reviewing officers must review as many nonimmigrant visa (NIV) refusals as is practical, but not fewer than 10 percent of refusals for each adjudicating day unless otherwise capped by the FAM Standard Set.  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.  During the first 10 days of a new officer's adjudications, the reviewing officer must review 100 percent of that officer's adjudications.  As an officer gains experience and competence over time, the percentage of refusals reviewed may decline as the reviewing officer deems appropriate.

c.  (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 Form in the CCD that explains the reason for overturning the refusal.

d. (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 L/CA  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 to document the discrepancy in the case notes and in the NIV Adjudication Review Form in the CCD.

9 FAM 403.12-4  (U) Supervisory Review of Visa Issuances

(CT:VISA-1151;   09-14-2020)

a. (U) Reviewing officers must review as many NIV issuances as is practicable, but not fewer than 10 percent of issuances for each adjudicating day unless otherwise capped by the FAM Standard Set.  Systematic, regular review of approved NIV applications is a significant management and instructional tool to maintain the highest professional standards of adjudication.  It also ensures uniform and correct application of applicable law and regulations.  This review should be done with a view to enhancing U.S. border security and ensuring consistent adjudication standards (see 9 FAM 601.4-2).  Conducting a timely review of required visa issuances before the visas leave the consular section is a critical tool to prevent VLA violations and ensure visas issued in error are not delivered to the applicant.  The reviewing officer must review the case and either confirm or disagree with the issuance and, in the case of disagreement with the issuance, explain the decision clearly in the review form and add a case note.  (See 9 FAM 307.4, Supervisory Duties, for information regarding supervisory review and VLA violations.)

b. (U) Reviewing officers should pay particular attention to issuances of inexperienced officers.  During the first 10 days of a new officer's adjudications, the reviewing officer must review 100 percent of that officer's adjudications.  The less visa adjudication experience an officer has, the greater the percentage of issuances that the consular manager should review.  As an officer gains experience and competence over time, the percentage of issuances reviewed should decline as deemed appropriate by the reviewing officer and ultimately conform to the norm outlined above.

c.  Unavailable

d. (U) If the chain of command rule (see 9 FAM 403.12-2) results in a reviewing officer who does not have a consular commission and title, that officer must nevertheless review issuances.  In such a scenario, the review should focus on, but not necessarily be limited to, the visa recipient’s likelihood to maintain lawful status in the United States and not engage in activities beyond the scope of the visa category, including his or her potential threat to people and property in the United States.  Reviewing officers should be alert to patterns of issuances that appear to fall outside the general norms for a post, such as issuances to TCNs or applicants who appear only marginally eligible, or unexplained overcomes of hard refusals.  While reviewing officers without recent consular experience cannot be expected to know the breadth and depth of visa statutes and regulations, they can add value to the issuance process by applying their knowledge of national security threat assessments, local conditions, and global trends.  At posts with a single consular officer, the reviewer, adjudicating officer, and Regional Consular Officer (RCO) must make issuances a regular topic of discussion during the RCO’s visits.

e. (U) If a reviewing officer as described in the above paragraph concurs with the issuance, he or she, like any other reviewing officer, must indicate his or her decision in the NIV Adjudication Review Form in the CCD.

f.  (U) Non-Concurrence With Issuance by Reviewing Officer: 

(1)  (U) If a reviewing officer with a consular commission and title does not concur with the issuance, 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 refuse an applicant under INA 214(b) without re-interviewing the applicant in person or by phone unless the disagreement involves a procedural error or a matter of law.  If the reviewing officer reverses the issuance and the visa has not yet been printed, the applicant must be notified promptly.  If the visa has been issued and printed it must be revoked per 9 FAM 403.11.  The reviewing officer should enter a note in the NIV Adjudication Review Form in the CCD and add a case note explaining the reason for overturning the issuance.

(2)  (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 issuance, printing of the case must be suspended, and the reviewing officer must:

(a)  (U) Discuss the basis for the original issuance, especially elements of fact, with the adjudicating officer in a good faith attempt to arrive at a mutually acceptable final adjudication of the application.

(b)  (U) If such a discussion cannot resolve the issue, the RCO, if the post is covered by an RCO, should be consulted for his or her insight with a view to coming to a mutually agreed-upon adjudication.  If the discussion cannot occur in a timely fashion, the case should be removed from the print queue and entered as an INA 221(g) refusal pending the outcome of this larger review and discussion.

(c)  (U) If the difference of opinion is based upon a legal or procedural issue that cannot be resolved by consulting Departmental guidance at post (the INA, FAM, CMH, cable guidance, etc.), post should seek Visa Office guidance.  Legal questions should be referred to L/CA and procedural questions to CA/VO/F.

(d)  Unavailable

(e)  (U) If, despite these efforts, no mutually agreed-upon adjudication can be achieved, the issuance stands.  In any case, a note of the discrepancy must be made in the comment field of the Form DS-160, Online Nonimmigrant Visa Application, and in the NIV Adjudication Review Form in the CCD.

UNCLASSIFIED (U)