9 FAM 504.9
(U) Immigrant Visa Adjudications
(Office of Origin: CA/VO)
9 fam 504.9-1 (U) RELATED STATUTORY AND REGULATORY AUTHORITIES
9 FAM 504.9-1(A) (U) Immigration and Nationality Act
(U) INA 101(a)(16) (8 U.S.C. 1101(a)(16)); INA 104 (8 U.S.C. 1104); INA 221(a) (8 U.S.C. 1201(a)); INA 222(b) (8 U.S.C. 222(b)).
9 FAM 504.9-1(B) (U) Code of Federal Regulations
(U) 22 CFR 42.64; 22 CFR 42.68; 22 CFR 42.71.
9 FAM 504.9-1(C) (U) United States Code
(U) 5 U.S.C. 552a.
9 FAM 504.9-2 (U) Issuing or Refusing Visas
(U) Once an application has been executed, you must either issue the visa or refuse it, unless the application is subject to an order under INA 243(d). You cannot temporarily refuse, suspend (other than subject to INA 243(d)), 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 504.11 for the refusal procedure and 9 FAM 305.2 and 9 FAM 305.4 for waiver relief.)
9 FAM 504.9-3 Unavailable
9 FAM 504.9-4 (U) Restrictions on Use of Passports
a. (U) Application Made Within Country of Passport Issuance: If an applicant for an immigrant visa (IV) presents a valid passport in the country where it was issued, and it is endorsed as not being valid for travel to the United States, or an endorsement is needed to authorize such travel and this endorsement is lacking, the consular officer shall not issue a visa until the restricting endorsement has been removed from, or approving endorsement has been placed on, the passport by the appropriate authorities or unless the passport requirement has been waived under 22 CFR 42.2. The reason for this is two-fold:
(1) (U) No useful purpose would be served in issuing a visa to an applicant who would, in effect, be forbidden to depart for the purpose of using that visa; and
(2) (U) Issuance of a visa in such circumstances could be regarded as an attempt to circumvent the laws or regulations of the country in which the post is located.
b. (U) Application Made Outside Country of Passport Issuance: If an alien with a passport containing a restriction on travel to the United States applies for a visa in a country other than the one which issued the passport, if the passport is otherwise valid and the alien is otherwise eligible, a visa may be issued without regard to the restriction.
9 FAM 504.9-5 (U) Informal Evaluation of Family Members If Principal Applicant Precedes Them
a. (U) Preliminary Determination of Visa Eligibility: If a principal applicant proposes to precede the family members to the United States, the consular officer may arrange for an informal examination of the other members of the principal applicant’s family in order to determine whether there exists at that time any mental, physical, or other ground of ineligibility on their part to receive a visa. If an informal examination of a member of a family is arranged as provided for in 22 CFR 42.68, the consular officer should obtain clearances from other posts and any background checks necessary to determine visa eligibility.
b. (U) When Family Member is Ineligible:
(1) (U) In the event any member of the family is found to be potentially ineligible to receive an immigrant visa, the principal applicant is to be so informed. A principal applicant wishing to pursue the application MUST provide an acknowledgement of notification of the family member’s potential ineligibility for an immigrant visa. The acknowledgment of notification of family member’s potential ineligibility for an immigrant visa is to be filed under the name of the ineligible family member for reference purposes in the event the family member should subsequently submit a visa application. The statement should be stamped for destruction at the end of five years.
(2) (U) If the potentially ineligible family member might benefit under the provisions of INA 212(g), (h), or (i), the principal applicant should be so informed and advised that the authority to invoke these sections is discretionary with the Department of Homeland Security (DHS) and that no advance assurance can be given that the admission of the principal applicant’s spouse or child will be authorized by DHS.
c. (U) No Guarantee of Future Eligibility: A determination in connection with an informal examination that an alien appears to be eligible for a visa carries no assurance that the alien will be issued an immigrant visa in the future. The principal applicant shall be so informed and required to acknowledge receipt of this information in writing. The question of visa eligibility can be determined definitively only at the time the family member applies for a visa.
9 FAM 504.9-6 (U) Procedure If Child Accompanied by Only One Parent
(U) If a child is immigrating to the United States with one parent and the other parent is remaining abroad, the consular officer should ask the accompanying parent whether any legal impediment might exist preventing the departure of the child. If the response is inconclusive, the consular officer should defer final action on the application and direct an informal inquiry to the local authorities in an effort to learn whether a violation of local law might be involved. If so, the local authorities would probably take action to prevent the child’s departure by lifting the child’s travel document or by other measures. If the local authorities do not take such action within a reasonable time, the officer should proceed with the consideration of the visa application.
9 FAM 504.9-7 (U) Applicant with Possible Claim to U.S. Citizenship
(U) Under 22 CFR 40.2(a), a U.S. citizen is not eligible to receive an immigrant visa. If an immigrant visa applicant has a possible claim to U.S. citizenship, the visa officer should refer the applicant to the post's citizenship and passport officer for a resolution of the citizenship issue. If the matter cannot be resolved that same day, the visa officer should deny the immigrant visa application under INA 221(g) pending resolution of the citizenship issue. Any doubts regarding the applicant's U.S. citizenship status must be resolved before the visa officer may take final action on the visa application. (See 9 FAM 503.2-4(B) and 9 FAM 202.1-2.)
9 FAM 504.9-8 (U) Release of information regarding petitioner’s criminal convictions
a. (U) Under 5 U.S.C. 552a, you cannot disclose any record pertaining to a citizen or lawful permanent resident (LPR) of the United States to any person or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record falls under one of the Privacy Act’s enumerated exceptions. The Department, in consultation with OMB, has determined that you may release information regarding certain criminal convictions of a visa petitioner under the health and safety provision of the Privacy Act, 5 U.S.C. 552a(b)(8), when you find “compelling circumstances” affecting the health and safety of a beneficiary, such as when:
(1) (U) The petitioner’s conviction relates to a criminal offense against a minor or a sexually violent offense; and
(2) (U) Among the beneficiaries of the petition, there is a visa applicant who will be a member of the petitioner’s household. Disclosure may be made only if you intend to approve the visa application. Before releasing the information, you must verify that the information is accurate by conducting a search in the National Sex Offender Public Registry or a comparable U.S. or State public criminal registry, by entering the petitioner’s name, country and/or city/town, and zip code, and comparing the information for the individual listed in the registry with the available information regarding the petitioner. By searching for information in such a registry, you will be undertaking reasonable efforts to determine whether the information is accurate and to confirm that the conviction has not been expunged from the petitioner’s record. If the search produces verification of the current existence in the registry of information concerning such a conviction that has not been expunged, you may disclose the information to the visa applicant or to a minor applicant’s parent or guardian. Disclosure must be limited to information concerning the petitioner’s sex-crime conviction (and not any other criminal arrest or conviction) that can be verified through a U.S. public criminal registry. Appropriate case notes should be entered into Immigrant Visa Overseas (IVO) to indicate that the applicant received notice of the petitioner’s criminal history. After informing the applicant, give the applicant time to decide whether he or she wishes to proceed with the visa application. Also, after the disclosure is made, you must notify the petitioner in writing that you have released information by sending notification to his or her last known address. Sample text is found in paragraph c below. (You must obtain, through an advisory opinion (AO) from L/CA, Department approval of the text of the notification before sending it to the petitioner.)
b. (U) Please contact L/CA before making any visa-related disclosures under the “health and safety” exception to the Privacy Act aside from the disclosures outlined above.
c. (U) Sample Notification to Petitioner:
[Last known address]
I am writing to notify you that, during a visa interview on [date], we disclosed the following information to __________________, a beneficiary of the petition for [indicate type] status which you filed on [date]:
[List the information that was disclosed to the beneficiary.]
[Only if applicable] We also provided a copy of the attached documents at that time.
This disclosure of information took place on the basis of [health and safety considerations for beneficiaries in light of the information referenced above].
d. (U) The guidance in this note does not apply for K-visa cases involving petitions filed on or after March 6, 2006. Those cases are governed by the International Marriage Brokers Regulation Act of 2005 (IMBRA), Subtitle D of Public Law 109-162, Violence Against Women and Department of Justice Reauthorization Act of 2005. You should disclose to a K-visa applicant during the visa interview such information regarding the petitioner’s conviction information provided by U.S. Citizenship and Immigration Services (USCIS) in accordance with instructions provided by USCIS in the individual cases. (See 9 FAM 502.7-3(D)(1) for additional information on the disclosure of petitioner criminal conviction history, protection orders, or restraining orders under IMBRA.)
e. (U) See 9 FAM 504.2-6(D)(1) for information about convictions information and the Adam Walsh Act.