UNCLASSIFIED (U)

9 FAM 504.7

Interview by Consular Officer

(CT:VISA-1157;   09-17-2020)
(Office of Origin:  CA/VO)

9 FAM 504.7-1  Statutory and Regulatory Authorities

9 FAM 504.7-1(A)  Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

INA 101(a)(16) (8 U.S.C. 1101(a)(16)); INA 221(a) (8 U.S.C. 1201(a));  INA 222(e) (8 U.S.C. 1202(e)).

9 FAM 504.7-1(B)  Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

22 CFR 42.62; 22 CFR 42.67; 22 CFR 42.71.

9 FAM 504.7-1(C)  Executive Order

(CT:VISA-1;   11-18-2015)

E.O. 10718.

9 FAM 504.7-2  Requirement for an Interview

(CT:VISA-1119;   07-21-2020)

a. Personal Appearance:  Although the regulation permits the waiver of the personal appearance for a child under the age of 14, the principal beneficiary, regardless of age, of any immigrant visa (IV) petition must appear in person.

b. Timeliness of Interview:  The interview with the consular officer is the most significant part of the visa issuing process.  It is particularly important from the point of view of full and correct application of the law.  Section 237 of Public Law 106-113 and subsequent legislation require that the Department establish a policy under which immediate relative (and fiancé(e)) visas be processed within 30 days of receipt of the necessary information from the applicant and the Department of Homeland Security (DHS); all other family-based immigrant visas (IV) must be processed within 60 days.  The Department expects all posts to strive to meet the 30/60-day requirements.

c. Interview Even if Documentation is Missing:

(1)  In addition to the inconvenience and expense caused to the alien (particularly an alien applying with family members), it is generally inefficient for the post if an application is not taken and the interview not conducted on the appointment date.  In a busy post, the number of daily interviews is set to maximize the use of space and personnel.  A canceled interview results in a gap in that day’s productivity without gain, since the interview must be rescheduled for another day.  In addition, there is no guarantee that the alien will be found eligible the second time around.  Rescheduling causes administrative backlogs, which, in turn, result in lost time answering correspondence and responding to telephone inquiries.

(2)  As a general rule, therefore, consular officers should accept applications from and interview all applicants appearing on the appointed date.  If an applicant fails to present all of the required documentation, the applicant should nevertheless pay the processing fee and be interviewed by the consular officer who must then refuse the application under INA 221(g) due to the missing documentation.  The consular officer should tell the applicant or a member of the family to mail or bring in the missing documentation, and also the issuance fee, and make clear that the visa(s) will be issued immediately if the documentation is found acceptable and the applicant is otherwise eligible for the visa.

9 FAM 504.7-3  Conducting an Interview

9 FAM 504.7-3(A)  Personal Interview of Visa Applicants by Consular Officer

(CT:VISA-980;   12-03-2019)

a. Consular officers must make every effort to conduct visa interviews fairly and professionally.  Any semblance of aggressive cross-examination, assumption of bad faith, or entrapment must be avoided.  Applicants should be given sufficient time to answer questions without interruption.  In cases where the consular officer’s determinations are difficult to make or which are or may become the subject of controversy, the officer must make a thorough and carefully written record of the interview so that the basis for the final action can be fully documented.  (See 9 FAM 504.11.)

b. Interviewing visa applicants is one of the consular officer’s most demanding jobs, requiring the officer’s composure, judgment, and diplomatic skills. Techniques for good interviewing, including the critical skill of how to ask the right questions, deserve careful attention.  Training materials on effective interviewing and fraud interviews are available through the Fraud Prevention Program’s Consular Affairs web page.

c.  Consular Officer’s Responsibility in Labor Certification Cases: If the applicant is applying for a visa on the basis of a job offer, labor certification, or a Schedule-A case not previously evaluated by a consular officer, you, as the adjudicating consular officer, must determine that the applicant has the professional or occupational qualifications on which certification is based.

d. Sources of Background Investigation Information Not Revealed:  Ensure that interviews are conducted so as to persuade the applicant to make full and frank disclosure of all information bearing on the visa application without disclosure by the officer of the actual sources of information obtained during the course of background investigations.

9 FAM 504.7-3(B)  Action Fee Receipts

(CT:VISA-1119;   07-21-2020)

Posts will collect the visa processing fee only for those cases in which the petition is filed at post or in which the visa file otherwise indicates that the fee has not yet been collected.  For fees paid at post, request the two fee receipts printed through the Automated Cash Register System (ACRS) and issued by the cashier for the processing fee.  Initial both receipt copies, return the customer copy to the applicant, and retain the Department of State copy.  (See 9 FAM 504.6-6(A).)

9 FAM 504.7-4  Oath and Execution of Application

9 FAM 504.7-4(A)  Explaining Significance of Oath to Applicant

(CT:VISA-210;   10-06-2016)

At the outset of the interview, inform the applicant that the interview will be based on answers given to the questions on Form DS-260, Online Application for Immigrant Visa and Alien Registration, and any others that might arise from examination of the supporting documents.  Clarify that the applicant will be required to swear or affirm that all statements made during the interview and on the form are true.  Also inform the applicant of the significance of such oath or affirmation.  You may, in this connection, refer to 18 U.S.C. 1001, which provides a penalty for making a false statement or using a false document in any matter within the jurisdiction of any department or agency of the U.S. Government.

9 FAM 504.7-4(B)  Establishing that Alien Understands Contents of Form DS-260

(CT:VISA-536;   03-26-2018)

Establish that it was the applicant who furnished the answers to the questions on Form DS-260, Online Application for Immigrant Visa and Alien Registration, or, if assisted by someone else, that the applicant nevertheless is fully aware of the nature of the application and the answers given, and has no questions about the application.  In most cases, you can accomplish this by asking the applicant a few of the questions on the form and comparing the oral responses with the written replies.  Should the applicant appear to have inadequate knowledge of the contents of the application, you must go over orally all questions having a bearing on the applicant’s eligibility to receive a visa.  To discourage professional intermediaries from coaching applicants, avoid establishing a set pattern in questioning applicants.

9 FAM 504.7-4(C)  Oath and Signature

(CT:VISA-1119;   07-21-2020)

a. You must be satisfied that the applicant has read the completed form, or, if the applicant is unable to read, he or she must be informed of the contents therein.  You must ask the applicant to subscribe to information therein.  If the alien is unwilling to subscribe to the information unless changes are made, the required changes must be made.  You must inform the applicant that all changes will be become a part of the official record associated with his or her application.  The application must be subscribed to or affirmed and signed by or on behalf of the applicant before a consular officer.

b. Collecting the signature:  You must collect the biometric signature from the applicant contemporaneously with the administration of the oath.

(1)  All applicants over the age of 14 who are legally competent and physically capable must biometrically sign their application under oath by providing a fingerprint.  You must use the IVO Oath Administration box to collect the biometric and record the administration of the oath.  The fields in the IVO Oath Administration box will be pre-populated with the applicant's information; you must administer the oath, collect the biometric signature, and certify that the oath has been administered.

(a)  You may encounter an applicant who, while legally competent to attest to the application, is physically unable to provide a biometric signature.  Generally speaking, you will only encounter this situation in cases in which the fingerprints were waived.  However, not all individuals who have had their fingerprints waived are exempt from the biometric signature requirement.  A full set of fingerprints is not required for the biometric signature, only 1 fingerprint is required.  The quality of the fingerprint does not need to meet the standard for the ten-print collection.  You should attempt to collect a biometric signature from all individuals except those without fingers.  In situations in which the applicant is physically incapable of providing the biometric signature, you must select "PHYSICALLY UNABLE TO PROVIDE FINGERPRINT AS AN ELECTRONIC SIGNATURE" in the Oath Taker field and annotate the Oath Remarks field with the reason for the lack of biometric signature.  For example, if the applicant has no fingers, you should remark "THE APPLICANT DOES NOT HAVE FINGERS, PHYSICAL SIGNATURE OBTAINED."  Unless subject to the exceptions below, you must collect the applicant's physical signature or mark.  The signature may be collected either on the form set forth below in 9 FAM 504.7-4(C) paragraph (e) - Biometric Signature Exemption or on a separate piece of paper.  This page must be scanned into the case and retained as part of the visa record.  You must include on the paper form with the applicant's signature, the case number (located on the left hand side of the confirmation page), and the applicant's full name.

(b)  If the applicant is unable to provide a biometric signature and is illiterate, or is otherwise unable to sign the application but has been informed of the contents and is willing to attest, you must witness the applicant placing his or her signature or mark in the space provided for signature on the paper form.

(c)  A self-attesting applicant may not refuse to provide a biometric signature.  For information on refusal to provide biometric signature by a proxy please see below.

(d)  If you refuse the IV application and the applicant does not submit additional evidence demonstrating he or she overcomes the basis of refusal within a year, the applicant is required to complete a new DS-260, be placed under oath again, and to biometrically sign the new application.

(2)  If the applicant is under the age of 14, a proxy must take the oath and biometrically sign the application on behalf of the minor, regardless of whether or not that minor was fingerprinted.  A parent, a legal guardian, or an individual having legal custody of, or a legitimate interest in the applicant may act as the applicant's proxy for the purpose of attesting to and biometrically signing the application.  When administering and recording the attestation and biometric signature for a minor you must indicate in the IVO Oath Administration box that the applicant is not self-attesting by selection "NO" to the question "The Applicant is self-attesting to the Oath."  You must select "Minor (younger than age 14)" from the REASON drop down in the IVO Oath Administration box:

(a)  If there are other applicants associated with the case, the IVO Oath Administration will automatically default to the principal applicant as the oath taker and pre-populate that individual’s information.  You can select an alternative adult associated with the case using the “Other Applicant – ID” drop down.  You should administer the oath and collect the biometric signature as appropriate.

(b)  If no other adult associated with the case is available, an individual not associated with the case may attest and biometrically sign on behalf of the minor, in which case you must select the option for “Other Non-Applicant” and then select the appropriate relationship from the “Relation to Applicant” dropdown.  The options on this drop down include Parent, Legal Guardian, Adoptive/Prospective Parent, Attorney, and Other.  If you select “Other,” you must explain the relationship in the Oath Remark field, then administer the oath and collect the biometric signature as appropriate.

(c)  A proxy who is associated with the case who has been fingerprinted cannot refuse to provide a biometric signature.  Only a non-associated proxy may refuse to provide a biometric signature.  If the proxy refuses to provide a biometric signature, you must indicate in the IVO Oath Administration box that the proxy was “Unwilling to provide a fingerprint as an electronic signature” and collect a physical signature from the proxy on either the form set forth below in 9 FAM 504.7-4(C) paragraph (f) - Proxy Signature or a separate printed sheet of paper.  This page must be scanned into the case and retained as a part of the visa record.  If you do not use the confirmation page as the signature page, you must include the case number (located on the left hand side of the confirmation page), the applicant’s full name, and the full name of the proxy.

(3)  If the applicant is over the age of 14 but legally or mentally incapacitated, a proxy must take the oath and biometrically sign the application on behalf of the applicant.  A parent, a legal guardian, or an individual having legal custody of, or a legitimate interest in the applicant may act as the applicant’s proxy for purposes of attesting to and biometrically signing the application.  When administering and recording the attestation and biometric signature for an incapacitated adult, you must indicate in the IVO Oath Administration box that the applicant is not self-attesting by selecting “NO” to the question “The Applicant is self-attesting to the Oath.”  You must select “Legally/Mentally Incapacitated Adult” from the REASON drop down in the IVO Oath Administration box:

(a)  If there are other applicants associated with the case, the IVO Oath Administration will automatically default to the principal applicant as the oath taker and pre-populate that individual’s information.  You can select an alternative adult associated with the case using the “Other Applicant – ID” drop down.  You should administer the oath and collect the biometric signature as appropriate.

(b)  If no other adult associated with the case is available, an individual not associated with the case may attest and biometrically sign on behalf applicant, in which case you must select the option for “Other Non-Applicant” and then select the appropriate relationship from the “Relation to Applicant” dropdown.  The options on this drop down include Parent, Legal Guardian, Adoptive/Prospective Parent, Attorney, and Other.  If you select “Other” you must explain the relationship in the Oath Remark field.  You then administer the oath and collect the biometric signature as appropriate.

(c)  A proxy who is associated with the case who has been fingerprinted cannot refuse to provide a biometric signature.  Only a non-associated proxy may refuse to provide a biometric signature.  If the proxy refuses to provide a biometric signature you must collect a physical signature from the proxy on either the applicant’s DS-260 confirmation page or a separate printed sheet of paper.  This page must be scanned into the case and retained as a part of the visa record.  If you do not use the confirmation page as the signature page, you must include the case number (located on the left hand side of the confirmation page), the applicant’s full name, the full name of the proxy, and the proxy’s relationship to the applicant.

c.  Administering the Oath/Affirmation:

(1)  You Must State the Following Words:  "Do you affirm that the statements made by you in this application and interview are true and correct to the best of your knowledge?"  The applicant must affirm, "I do", or if unable to speak give a physical indication of his or her affirmation.

(2)  Posting Statement Near Fingerprint Scanner:  Posts must display the following language in the window above the fingerprint scanner, or on the counter next to the scanner, whichever works best for post, as long as it is clearly visible to the applicant.  “By submitting my fingerprint, I am affirming under penalty of perjury that I have read and understood the questions in my immigrant visa application and that all statements that appear in my immigrant visa application have been made by me and are true and complete to the best of my knowledge and belief.  Furthermore, I affirm under penalty of perjury that all statements that I have made, or will make, during my interview are true and complete to the best of my knowledge and belief.”  Posts that have television monitors in the waiting areas may also want to place the statement near the monitors, but must still display it in front of or above the fingerprint scanner.  At posts where officers interview in a language other than English, post should display this text in English and in the appropriation local language(s).

d. Consular Officer Signature:  Your signature and consular title will be automatically recorded in the IVO system at the time of adjudication.  

e. Biometric Signature Exemption:

SIGNATURE AND AFFIRMATION FOR AN IMMIGRANT VISA APPLICANT EXEMPT FROM BIOMETRIC SIGNATURE REQUIREMENT

 

I, ______________________, understand that if I am issued a visa, I am required to display and surrender my visa to the United States Immigration Officer at the port of entry where I apply to enter the United States and that possession of a visa does not entitled me to enter the United States if, at the time, I am found inadmissible under the immigration law.

 

I understand that any willfully false or misleading statement or willful concealment of material facts made by me in my Online Application for an Immigrant Visa and Alien Registration, or during my immigrant visa interview may subject me to permanent exclusion from the United States or may subject me to criminal prosecution and/or deportation. 

 

I affirm, under penalty of perjury, that I have read and understood the questions in my immigrant visa application and that all statements that appear in my immigrant visa application have been made by me and are accurate and complete to the best of my knowledge and belief.  Furthermore, I affirm under penalty of perjury that all statements that I have made in the course of my visa interview are accurate and complete to the best of my knowledge and belief. 

 

I do affirm, that if admitted to the United States, I will not engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States; in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activities subversive to the national security; in any activity the purpose of which is the opposition or the control or overthrow of, the Government of the United States, by force, violence, or other unconstitutional means. 

 

I understand that if I am issued an immigrant visa and I am a male between the ages of 18 and 25, I am required by law to register with the Selective Service System in accordance with the Military Service Act.

 

I understand all of the foregoing statements, having asked for and obtained an explanation on every point which was not clear to me.

 

__________________________               __________________

(Signature of Applicant)                                    (Date)

 

__________________________

(Case Number)

Subscribed and affirmed before me this __________ day of ________, _________ at __________________.

 

__________________________

(Consular Officer)

f.  Proxy Signature:

SIGNATURE AND AFFIRMATION FOR A PROXY EXECUTING AN IMMIGRANT VISA APPLICATION ON BEHALF OF AN APPLICANT

 

I, __________________, am executing an immigrant visa application on behalf of ­­­­­___________________.  I know the applicant personally and have first-hand knowledge about the facts underlining the statements on the DS-260, Online Application for an Immigrant Visa and Alien Registration.  I have agreed to sign this form instead of providing a biometric signature.   

 

I understand that if (name), is issued a visa, he/she will be required to display and surrender his/her this visa to the United States Immigration Officer at the port of entry where he/she applies to enter the United States.  I further understand that possession of a visa does not entitle him/her to enter the United States if, at the time, he/she is found inadmissible under the immigration law.  If I do not accompany (name) to the port of entry, I will ensure that this information is communicated to the individual accompanying (name).

 

I understand that any willfully false or misleading statement or willful concealment of a material fact made on the application, or during the visa interview may subject me to criminal prosecution.

 

I affirm, under penalty of perjury, that I have read and understand the statements made in the immigrant visa application and that all statements are accurate and complete to the best of my knowledge and belief.  Furthermore, I affirm, under penalty of perjury that all statements that I have made in the course of the visa interview are accurate and complete to the best of my knowledge and belief. 

 

I understand that if the applicant is issued an immigrant visa and is a male between the ages of 18 and 25, he is required by law to register with the Selective Service System in accordance with the Military Service Act. 

 

I understand all of the foregoing statements, having asked for and obtained an explanation on every point which was not clear to me.

__________________________               __________________

(Signature of Proxy)                              (Date)

 

__________________________

(Case Number)

Subscribed and affirmed before me this __________ day of ________, _________ at __________________.

 

__________________________

(Consular Officer)

9 FAM 504.7-5  USCIS Victims of Domestic Violence Pamphlet

9 FAM 504.7-5(A)  Review of USCIS Victims of Domestic Violence Pamphlet During Interview

(CT:VISA-403;   07-14-2017)

During Interview of Each Spouse Applying for an IR1, CR1 or F2A (F21, C21, FX1, or CX1) Immigrant Visa, You Must:

(1)  Provide a copy of the USCIS pamphlet, "Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa," in English or another appropriate language.

(2)  Orally review with the applicant, in his or her primary language, if feasible, or otherwise in either the language spoken in the country of application or English, the synopsis of the points contained in the pamphlet (synopsis provided below in 9 FAM 504.7-5(B) below).

(3)  Add case notes in IVO that the pamphlet was received, read, and understood by the applicant.

9 FAM 504.7-5(B)  Synopsis of USCIS Pamphlet for Applicants for K Nonimmigrant Visas and Family-Based Immigrant Visas

(CT:VISA-1119;   07-21-2020)

a. Why Are We Providing the Pamphlet?

(1)  The International Marriage Broker Regulation Act (IMBRA) requires that the United States government provide, to an immigrating fiancé(e) or spouse of a citizen or resident of the United States, an information pamphlet on legal rights and resources for immigrant victims of domestic violence.  Immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance.  Such fear causes many immigrants to remain in abusive relationships. 

(2)  IMBRA also provides for the United States government to provide, to an immigrating fiancé(e) or spouse of a U.S. citizen who has a history of criminal or domestic violence, a copy of the citizen’s criminal background information.  

(3)  One of IMBRA’s goals is to provide applicants with accurate information about the immigration process and how to access help if a relationship becomes abusive.

b. What is Domestic Violence?

(1)  The pamphlet provides detailed explanations of the term “domestic violence” and two related offenses, sexual assault and child abuse. 

(2)  Domestic violence involving current or former partners is a pattern of behavior where one intimate partner or spouse threatens or abuses the other partner or spouse.  Abuse may include physical harm, forced sexual relations, emotional manipulation (including isolation or intimidation), and economic and/or immigration-related threats. 

(2)  Under all circumstances, domestic violence, sexual assault, and child abuse are illegal in the United States.  All people in the United States are guaranteed protection from abuse under the law.  Any victim of domestic violence can seek help.  An immigrant victim of domestic violence may be eligible for immigration protections. 

(3)  The pamphlet is intended to help the applicant understand U.S. laws regarding domestic violence and how to get help if the applicant needs it. 

c.  What are the Legal Rights for Victims of Domestic Violence in the United States?

    All people in the United States, regardless of immigration or citizenship status, are guaranteed basic protections under both civil and criminal law.  Laws governing families provide you with:

·        The right to obtain a protection order for you and your child(ren).

·        The right to legal separation or divorce without the consent of your spouse.

·        The right to share certain marital property.  In cases of divorce, the court will divide any property or financial assets you and your spouse have together.

·        The right to ask for custody of your child(ren) and financial support.  Parents of children under the age of 21 often are required to pay child support for any child not living with them.

d. What Services are Available to Victims of Domestic Violence and Sexual Assault in the United States?

(1)  In the United States, victims of these crimes can access help provided by government or nongovernmental agencies, which may include counseling, interpreters, emergency housing, and even monetary assistance.

(2)  The telephone numbers or “hotlines” listed in the pamphlet have operators trained to help victims 24 hours a day free of charge.  Interpreters are available, and these numbers can connect the victim with other free services for victims in the victim's local area, including emergency housing, medical care, counseling, and legal advice.  If the victim cannot afford to pay a lawyer, he or she may qualify for a free or low-cost legal aid program for immigrant crime or domestic violence victims. 

e. What Immigration Options May Be Available to a Victim of Domestic Violence, Sexual Assault, or Other Crime?

    The pamphlet outlines three ways immigrants who become victims of domestic violence, sexual assault, and some other specific crimes may apply for legal immigration status for themselves and their child(ren): (1) self-petitions for legal status under the Violence Against Women Act (VAWA); (2) cancellation of removal under VAWA; or (3) U nonimmigrant status.  Because a victim’s application is confidential, no one - including an abuser, crime perpetrator, or family member - will be told that the victim applied.  A victim of domestic violence should consult an immigration lawyer who works with other victims to discuss immigration options that may be available.

f.  How Does the U.S. Government Regulate “International Marriage Brokers”?

    Under IMBRA, “international marriage brokers” are required to give the foreign national client background information on the U.S. client who wants to contact the foreign national client, including information contained in Federal and State sex offender public registries, and to get the foreign national client’s written permission before giving the U.S. client the foreign national client’s contact information. If the applicant is a foreign national client, the agency is required to give the applicant a copy of the pamphlet.  It is prohibited from doing business with individuals who are under 18 years of age.

g. Can a K Nonimmigrant Visa Applicant Rely on Criminal Background Information that USCIS has Compiled on a U.S. Citizen Fiancé(e) or Spouse?

    IMBRA requires the U.S. Government to share any criminal background information on a K nonimmigrant petitioner with the fiancé(e) or spouse who is applying for a K visa as the beneficiary of such a petition.  The criminal background information compiled by USCIS comes from various public sources, as well as information provided by the U.S. citizen clients on immigration applications.  USCIS does not have access to all criminal history databases in the United States.  The U.S. citizen sponsor may not tell the truth in the sponsorship application.  It is also possible the U.S. citizen has a history of abusive behavior but was never arrested or convicted.  Therefore, the criminal background information an applicant receives may not be complete.  The intent of the law is to provide available information and resources to immigrating fiancé(e)s and spouses.  Ultimately, the applicant is responsible for deciding whether he or she feels safe in the relationship. 

h. Can Foreign Fiancé(e)s or Spouses Who are Victims of Domestic Violence Also be Victims of Human Trafficking?

    Other forms of exploitation, including human trafficking, can sometimes occur alongside domestic violence, when the exploitation involves compelled or coerced labor, services, or commercial sex acts.  The pamphlet contains information on how to obtain help regarding human trafficking.

UNCLASSIFIED (U)