9 FAM 601.12
(U) Discontinuation of Visa issuance under INA 243(d)
(Office of Origin: CA/VO/L/R)
9 FAM 601.12-1 (U) OVERVIEW
(U) INA 243(d) provides that upon being notified by the Secretary of Homeland Security that a government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Secretary of Homeland Security notifies the Secretary of State that the country has accepted the alien.
9 FAM 601.12-2 (U) Application of section 243(d) discontinuation of visa issuance
9 FAM 601.12-2(A) (U) What Does Discontinuation under INA 243(d) Mean?
(U) A discontinuation of visa issuance under INA 243(d) is based on an order issued by the Secretary of State to consular officers in a particular country to stop issuing visas pursuant to INA 243(d). The Secretary may decide to order consular officers to discontinue issuing all visas in the country or a subset of visas.
9 FAM 601.12-2(B) (U) When to Discontinue Visa Issuance Under INA 243(d)
(U) Affected posts generally will be informed by cable which visa classifications or categories of visa applicants are subject to a discontinuation under INA 243(d) and when visa issuance must be discontinued. When the Secretary orders discontinuation of visa issuance, the Visa Office will work with the relevant regional bureau and the affected post to provide specific guidance via cable.
9 FAM 601.12-2(C) (U) What Countries, Visa Classifications, and Categories of Applicants are Subject to Discontinuation of Visa Issuance Under INA 243(d)
(U) The following countries are currently subject to discontinuation of visa issuance under INA 243(d): Burma, Cambodia, Ghana, Eritrea, Laos, and Sierra Leone.
9 FAM 601.12-3 (U) Procedures for discontinuation of visa issuance under INA 243(d) for nonimmigrant visas
9 FAM 601.12-3(A) (U) In General
(U) INA 243(d) discontinuation of visa issuance pertains to the actual issuance, not to adjudication. Therefore, you should fully adjudicate all applications and refuse applications on the basis of any ineligibilities, where applicable, such as INA 214(b) or INA 212(a). In cases with ineligibilities, follow the normal refusal procedures in 9 FAM 403.10-3(A). Visas may not be issued in cases covered by the Secretary's order unless or until the Department approves an exception under the order or issues a cable stating that the sanction has been lifted.
9 FAM 601.12-3(B) (U) Adjudication of Applications Filed Before INA 243(d) Discontinuation Effective Date
(U) Starting on the day the Secretary's order takes effect, no visas falling within the scope of the order may be issued unless the Department approves an exception. Consequently, even visa applications filed before the order took effect are subject to the order. As with applications filed after the order takes effect, you should continue processing applications filed before the discontinuation and follow the adjudication guidance in 9 FAM 601.12-3(C) below.
9 FAM 601.12-3(C) (U) Adjudication of Applications Filed On or After INA 243(d) Discontinuation Effective Date
a. (U) Public Notice of Discontinuation of Visa Issuance: During the period of discontinuation, posts should continue receiving and adjudicating cases; however, posts should explain the discontinuation of visas to all applicants covered by the order. The explanation should note that visas cannot generally be issued for certain visa classifications or categories of applicants as determined by the Secretary's order, and explain that visa fees will not be refunded, but that the cases will be reviewed again once visa issuance resumes. The notification may be provided by flyers posted in the consular section and/or on the post's website.
b. (U) Discontinuance Procedures Under INA 243(d):
(2) (U) Orally Inform the Applicant: Orally inform the applicant that he/she will not be issued a visa at this time, because visa issuance has been discontinued under INA 243(d). Do not tell the applicant that he/she has been denied or refused under INA 243(d), because INA 243(d) is a discontinuation of issuance only. Explain that the application will be reconsidered when the order has been lifted and visa issuance resumes.
(3) (U) Provide Written Notification: Provide the applicant with a copy of the letter below that explains INA 243(d).
Dear [Insert Applicant's Name]:
This letter is to inform you that we are unable to issue a visa to you today, because visa issuance temporarily has been discontinued under Section 243(d) of the Immigration and Nationality Act. The Secretary of Homeland Security has notified the Secretary of State that [insert country] denies or unreasonably delays accepting the return of its citizens, subjects, nationals or residents subject to deportation from the United States, and the Secretary of State has ordered consular officers in [insert country] to discontinue granting [insert affected visa classes or categories]. Consistent with the Secretary's order, the issuance of your visa has been suspended. Applicants cannot appeal the suspension and we will not refund the visa application fee.
When the Secretary of Homeland Security notifies the Secretary of State that [insert country] has complied with U.S. requests relating to acceptance of its national or nationals, the normal issuance of visas will resume. A consular officer will review your application at that time, and may contact you as necessary regarding it.
9 FAM 601.12-3(D) (U) Exceptions to 243(d) and Cases requiring an Advisory Opinion
a. (U) Advisory Opinion Required: Orders issued by the Department to discontinue visa issuance may include certain exceptions, such as for travel covered by U.S. international legal obligations, for humanitarian reasons, or for other U.S. national interests. Guidance on applying exceptions will be included in a cable to affected posts.
9 FAM 601.12-3(E) (U) Applications filed by Nationals of 243(d) Countries Applying at other Posts
a. (U) In General: INA 243(d) only applies to visa issuance in the country that is sanctioned and not to nationals of that country applying at posts outside the country. The following guidance applies to nationals of sanctioned countries applying at posts outside the country covered by an order to discontinue visa issuance under INA 243(d).
b. (U) Residents of consular district of application: You are required to accept NIV applications from visa applicants resident in your consular district, as explained in 9 FAM 403.2-4(A). Nationals of countries subject to INA 243(d) who reside in another consular district are eligible to apply in that other district and have their application adjudicated there. Consequently, INA 243(d) should not be considered for these applicants.
c. (U) Physically present but not resident in the consular district of application: 22 CFR 41.101(a) and 9 FAM 403.2-4(B) give you the discretion to permit an alien who is physically present, but not resident, in your consular district to apply for a nonimmigrant visa (NIV) outside his or her resident district, and you normally are expected to exercise your discretion to accept such an application. However, visa applicants who fall within the scope of an order under INA 243(d), and who in the adjudicating officer's judgment are most likely applying for a visa outside of the sanctioned country specifically to avoid the sanctions, represent the type of exceptional cases whose applications should be rejected for lack of residence in the consular district, at the consular officer’s discretion. Consular officers who are rejecting applications of those seeking to avoid the INA 243(d) sanctions should use the "case transfer" function in NIV 4.10 in "Open" status, and transfer the case to the appropriate post in the country that is subject to INA 243(d) sanctions. Although the transfer function permits denial of cases under INA 221(g) prior to transfer, do not select that option. These cases should be transferred in Open status.
d. (U) Neither resident nor physically present in consular district of application: As discussed in 9 FAM 403.2-4, you are precluded from accepting or processing a regular-type NIV application when the alien is neither a resident of, nor physically present in, the consular district at the time of application.
9 FAM 601.12-4 (U) Termination of Discontinuation of Nonimmigrant Visa Issuance under INA 243(d)
9 FAM 601.12-4(A) (U) Termination of INA 234(d) Discontinuation Procedures
a. (U) Under INA 243(d), the discontinuation of visa issuance ends and visa issuance resumes, once the Secretary of Homeland Secretary notifies the Secretary of State that the sanctioned country has accepted its national[s]. When that happens, the Department will advise affected posts by cable that they should resume issuing affected visa classifications and categories. Posts should not resume issuance of visas in a country subject to INA 243(d) sanctions until such notice is received.
b. (U) When a post is informed that the INA 243(d) discontinuance is terminated, posts should resume visa processing as usual for new cases and review the visa applications, including conducting namechecks, of those applicants who did not receive visas solely because of the discontinuation of visa issuance under INA 243(d). If the reviewing consular officer concludes that an applicant is eligible for a visa at that time, then the officer should issue the visa, as discussed in 9 FAM 601.12-4(B). Typically, neither a new application nor a new MRV fee will be required to issue the visa.
c. (U) Consular sections may, at their discretion, contact applicants or conduct a new interview to resolve any eligibility issues.
9 FAM 601.12-4(B) Unavailable
9 FAM 601.12-5 (U) Procedures for discontinuation of visa issuance under INA 243(d) for immigrant visas