9 FAM 603.2
(U) Releasing Visa Information
(Office of Origin: CA/VO/L/R)
9 FAM 603.2-1 (U) Related statutory and regulatory Authorities
9 FAM 603.2-1(A) (U) Immigration and Nationality Act
(U) INA 222(f) (8 U.S.C. 1202(f)).
9 FAM 603.2-1(B) (U) Code of Federal Regulations
(U) 22 CFR 40.4.
9 FAM 603.2-1(C) (U) Other Statutory Authority
(U) Freedom of Information Act (FOIA) (5 U.S.C. 552 et seq.); and the Privacy Act (5 U.S.C. 552a et seq.).
9 FAM 603.2-2 (U) Releasing visa information – Overview
a. (U) General Guidelines, Resources: Department authorization is often required prior to release of visa-related files, records and information; other procedures may also be required to ensure accountability for release of information. See 9 FAM 603.2 sections below to verify whether advisory opinion (AO) requests or other actions are required prior to release of visa-related information. See also 9 FAM 603.1 for information on protecting visa information, and 9 FAM 601.7 on visa correspondence.
(1) (U) Sharing Information with the Department and other Consular Sections: See 9 FAM 603.2-4.
(2) (U) Sharing Information With Congress: See 9 FAM 603.2-5.
(3) (U) Sharing Information With Other U.S. Departments, Agencies or Entities: See 9 FAM 603.2-6.
(4) (U) Sharing Information With Foreign Courts or Governments: See 9 FAM 603.2-7.
(5) (U) Sharing Information With Visa Applicants: See 9 FAM 603.2-8.
(6) (U) Sharing Information With Attorneys or Other Representatives of Record: See 9 FAM 603.2-9.
(7) (U) Sharing Information With Third Parties: See 9 FAM 603.2-10.
b. (U) Protecting Other Agencies’ Information from Unauthorized Release: Posts may not disclose information obtained from other agencies without the approval of the agency that provided the information. This is often referred to as the "third agency rule."
c. (U) Releasable Visa-Related Information: Copies of unclassified, non-SBU pages of 9 FAM or unclassified documents containing general information relating to visa procedural instructions are releasable since they are not considered visa records for the purposes of INA 222(f). (See 9 FAM 603.1-2 for more on what makes up a visa record.)
d. (U) Avoiding Abusive Use of Information Released: See 9 FAM 603.2-7(C) paragraph e on the necessity of working to prevent the abusive use, or unauthorized release, of visa-related information.
e. (U) Effect of Unethical Conduct by Intermediaries on Release of Visa Documents and Information:
(1) (U) Intermediaries Other than Attorneys and U.S. Agents: All or part of the privileges related to release of visa-related information may be denied to any intermediary, other than an attorney, who is an alien established abroad or to any category of alien intermediaries (for example, consultants, travel agents, etc.), other than an attorney, who you have reason to believe has been engaged in unethical or fraudulent conduct during the visa process. The post must report any such decision to the Department with an explanation. However, you may accept documents from an agent if such documents were requested from the visa applicant, as an individual could easily mail the documents to you as having been submitted by the visa applicant.
(2) (U) Attorneys and Intermediaries Based in the United States: In cases where the principal consular officer believes that all or any part of the privileges indicated herein must be denied to any attorney or U.S.-based representative because of unethical conduct or for other good reason, you must submit a cable slugged for "CA/VO; CA/VO/L/A; CA/VO/F; CA/FPP." The report must contain the reasons for denial of privileges and the proposed reply to the attorney or U.S.-based representative, for the Department's final determination. In addition, if the individual in question has previously been the subject of a communication from the Department regarding unethical or fraudulent activity, you must make reference to such communication.
9 FAM 603.2-3 (U) Freedom of Information Act and Privacy Act Disclosures
a. (U) The Freedom of Information Act (FOIA) (5 U.S.C. 552 et seq.) generally provides for access by the public to the records maintained by Federal agencies. The Privacy Act (5 U.S.C. 552a et seq.) generally protects the records maintained by Federal agencies on individual U.S. citizens and Lawful Permanent Residents (LPRs) from disclosure, but provides for access to such records by the individual citizen or LPR.
b. (U) Visa records are confidential under INA 222(f) and are generally not releasable under FOIA or the Privacy Act unless the document was submitted by or sent to the requesting party. See 9 FAM 603.2-3(A) for information on release of information under FOIA, and 9 FAM 603.2-3(B) for information on release of information under the Privacy Act. 9 FAM 603.2-3(C) provides guidance on handling requests for information under either FOIA or the Privacy Act.
9 FAM 603.2-3(A) (U) Release of Visa Information Under the Freedom of Information Act
a. (U) Who May Request Visa Records or Information Under FOIA: U.S. citizens and aliens, resident in the United States or abroad (except fugitives), and corporations or foreign governments may request information under the Freedom of Information Act (FOIA). Furthermore, the requester is not required to establish a particular need or basis for the request. Copies of Government records may be obtained through FOIA request unless the information requested falls within one or more of FOIA’s nine exemptions.
b. (U) FOIA Exemption From Release of Visa-Related Information:
(1) (U) It has been determined that visa records and information contained in a visa applicant's file are statutorily exempt from release under FOIA provisions.
(2) (U) FOIA exempts from its general mandate of disclosure matters which are “specifically exempted from disclosure by statute, provided that such statute:
(a) (U) Requires that the matters be withheld from the public in such manner as to leave no discretion on the issue, or
(b) (U) Establishes particular criteria for withholding or refers to particular types of information to be withheld.
(3) (U) The language of INA 222(f) provides in part that: "records of the Department of State and diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States…”
9 FAM 603.2-3(B) (U) Release of Visa Information Under the Privacy Act
a. (U) Who May Receive Information and Records Under the Privacy Act of 1974: It has been determined that INA 222(f) is also an exemption to the Privacy Act. Therefore, individuals, such as U.S. citizens and Lawful Permanent Residents (LPRs), who might otherwise be able to obtain government records relating to themselves under the Privacy Act, cannot do so if the records are Department of State visa records covered by INA 222(f), unless the records fall within an exception to INA 222(f). In other words, a Privacy Act waiver does not allow the release of visa records that are confidential under INA 222(f).
b. (U) Releasing Visa Records to Parents of a Minor Child: A U.S. citizen parent, an LPR parent, or a non-LPR alien parent may request access to his or her minor U.S. citizen or LPR child's records under the provisions of the Privacy Act. If the parents of the minor are divorced, the fact that the requesting parent has not been awarded custody of the child has no bearing on the parent's right of access to the minor's file. Consequently, if the information is releasable to the minor child, it is also releasable to that child's parent provided the parent presents proof of such relationship. Additionally, visa records that are releasable to the applicant, such as copies of the DS-160 that the applicant submitted, are also releasable to the parents of a minor visa applicant.
c. (U) Exception to Privacy Act Prohibition Against Disclosure Where Danger to Health or Safety Is Involved: The Privacy Act gives the Department considerable latitude to release documents or information pertaining to a citizen or an LPR to a third party in situations where the health or safety of the citizen or LPR would be in jeopardy without the release. Consequently, the Department supports a liberal interpretation with regard to the release of information in such situations.
9 FAM 603.2-3(C) (U) Handling Requests for Release of Information Under FOIA and the Privacy Act
a. (U) Consular Officer Handling of FOIA and Privacy Act Requests:
(1) (U) With the exception of requests mentioned in 9 FAM 603.2-8 paragraph f, in any case where a request for release of documents or information contained in a visa applicant's file specifically makes reference to the FOIA or Privacy Act, you should advise the requester that if they wish to pursue the matter, they must submit the request in writing to:
Office of Information Programs and Services
2201 C Street N.W., Suite 12A40A
U.S. Department of State
Washington, DC 20520-0000
(2) (U) At the same time, you must also inform the requester that visa records are confidential under INA 222(f) and are generally not releasable under FOIA or Privacy Act unless the document was submitted by or sent to the requesting party. Therefore, persons requesting visa information under the FOIA or Privacy Act generally will only be able to obtain documents that they have already seen.
b. (U) Department Handling of FOIA Requests:
(1) (U) The Information and Privacy Coordinator serves as a control point for disseminating FOIA requests for adjudication by appropriate offices; i.e., CA/VO/L/A for requests relating to visa files.
(2) (U) When the Department receives a FOIA or Privacy Act request relating to visa records, the Department’s FOIA/PA office, Office of Information Resources Management Programs and Services (A/GIS/IPS) will task the relevant post(s) (as well as VO, NVC, and KCC, if appropriate) to search their records for responsive documents and to send documents that fit the description to the request, regardless of whether post believes the documents may be protected by INA 222(f) and exempt from release.
(3) (U) A/GIS/IPS will then forward the visa records produced by posts to CA/VO/L/A, which will review the documents and determine what, if any, documents may be released consistent with INA 222(f) and relevant FOIA and Privacy Act exemptions. In general, the Department will only be able to release to the visa applicant or his or her representative those documents that were submitted by or provided by the applicant in the course of processing the visa application.
c. (U) See also 9 FAM 603.2-8 regarding sharing visa information with applicants and 9 FAM 603.2-9 regarding sharing visa information with applicants’ attorneys or representatives of record in non-FOIA and -Privacy Act situations.
9 FAM 603.2-4 (U) Sharing Visa Information with Department and Other Consular Sections
(U) Sharing of visa records within the Department and with other consular sections is governed by CA policy, which states that access to any visa record is authorized only as required for the performance of official duties.
9 FAM 603.2-5 (U) Sharing Visa Information with Congress
a. (U) Congressional Requests regarding visa status: Consular posts will likely receive congressional requests on visa applicants, such as the status of visa case. See 9 FAM 603.2-10 for requests from a Congressional office is clearly representing the interests of the applicant and not those of a party who is adverse to the issuance of a visa the applicant. See also 9 FAM 601.7-3 on correspondence with Congressional offices and 9 FAM 601.7-5 paragraph c for an example of an electronic response to a Member of Congress.
b. (U) Requests from Congressional Committees: Under INA section 222(f), the State Department may transmit visa records to a Congressional Committee or subcommittee under certain conditions. First, a formal request must be made in writing by the chairperson or ranking member of the committee or subcommittee. Second, the request must indicate that the requested records will be used to support the formulation, amendment, administration, or enforcement of U.S. law. For instance, the Committees on the Judiciary, Homeland Security, and Foreign Relations have jurisdiction over immigration matters, and therefore requests for visa records from these committees are likely to be for the purpose of the formulation or amendment of U.S. law relating to immigration.
9 FAM 603.2-6 (U) Sharing Visa Information with Other U.S. departments, Agencies or Entities
9 FAM 603.2-6(A) (U) General Guidance
b. (U) Providing Copies of Items in Visa Records to Other Agencies, or for Use in Courts:
(1) (U) If the Bureau of Diplomatic Security (DS), another section of the Department, or another U.S. Government agency needs copies of items in a visa record, the requesting agency must submit a memorandum for the post’s files identifying the documents needed and specifying why they are needed in connection with the enforcement or administration of U.S. law.
(2) (U) In addition, if original documents are required, the requesting office or agency must explain in its memorandum why an original is required and give assurances that the original will be returned if practicable. The memorandum must also affirm that chain of custody will be maintained, the originals and any copies will be securely stored, and any use or disclosure will be exclusively for U.S. Federal law enforcement purposes. The memorandum must also identify the office and officer to which custody is being transferred.
(3) (U) With one exception (see paragraph (4) below), originals can only be released pursuant to an AO request, slugged for action by Consular Affairs Office of Legislation and Advisory Opinion (CA/VO/L/A) and the Office of the Assistant Legal Adviser for Consular Affairs (L/CA). If the request is approved, you must obtain a certified copy of the document prior to its release. The releasing officer must also inform the requesting agency’s employee of the confidentiality of information contained in visa records.
(4) (U) AO approval is not required in cases where DS has certified in its memorandum that the reason the original is required is that it is for forensic analysis or that it is immediately needed as possible evidence with respect to an internal investigation. In such cases approval may be presumed and post should make a certified copy of the record to be maintained in the file, along with the original DS memorandum, a copy of which is to be forwarded to CA/VO/L/A immediately.
9 FAM 603.2-6(B) (U) Release of Visa-Related Information to the Department of Homeland Security
a. (U) In general, visa records may be released to DHS officers with an official need to know, but only for internal use, and only if the records are marked as visa records, confidential under INA 222(f), and that further disclosure requires permission from the Bureau of Consular Affairs. When DHS officers need to view CCD records, they will normally use a CCD account issued to DHS and will not ask consular sections to perform CCD searches. Any visa records released must be marked as visa records, confidential under INA 222(f). The 222(f) disclaimer language in the CCD is a convenient source for 222(f) disclaimer language.
b. (U) See 9 FAM 602.2-2(A)(2) for information on posts’ visa-related reports (investigative, fraud, etc.) provided to the Department of Homeland Security (DHS), and instructions on report preparation to ensure that visa-related information is protected.
9 FAM 603.2-6(C) (U) Release of Tax Information to the Internal Revenue Service
a. (U) Information Relating to U.S. Citizens or Lawful Permanent Residents (LPRs): Release of information from U.S. tax forms by a consular officer to the IRS where fraud is suspected by the officer falls within the “routine use” exception to the Privacy Act adopted by the Department with reference to all of its systems of files.
(1) (U) Therefore, in any case in which a consular officer comes into possession of information that leads the officer to conclude that a violation or potential violation of U.S. tax law may have occurred with respect to any person, the officer may refer the information to the IRS.
(2) (U) You may release information concerning any individual to the IRS for internal use only at the IRS's request in a specific case, when the IRS states that a violation or potential violation of U.S. law may have occurred. Any proposed search of consular files by IRS employees would require approval of the Department.
b. (U) Record-Keeping Requirement: In cases involving the release of information to the IRS relating to a U.S. citizen or LPR, you must maintain with regard to each disclosure a name-retrievable record of the disclosure, showing the nature of the information disclosed and the date and purpose of disclosure.
c. (U) Requests Relating to Nonresident Alien Files: You may release information pertaining to nonresident aliens to the IRS at that agency's request or upon your initiative, provided you are satisfied that the information will be used in the administration and enforcement of U.S. law.
9 FAM 603.2-6(D) (U) Release of Visa Information Based on U.S. Court Requests
a. (U) INA 222(f)(1) allows for discretionary release of information from, or certified copies of, visa records by the Secretary of State in cases where a U.S. court certifies that documents from a visa record are necessary in cases pending before the court involving such visa record.
b. (U) You must refer to CA/VO/L/A by email any U.S. court request for copies of documents or information contained in a visa file and include copies of or references to the requested documents. Upon receipt of the certified copies of the documents and/or information requested by the court, the Department will review the material and if deemed appropriate, forward the records to the interested courts.
9 FAM 603.2-7 (U) Sharing Visa Information with Foreign Courts or Foreign Governments
9 FAM 603.2-7(A) (U) Overview
a. (U) General Framework: INA 222(f) authorizes the Department to release of information from, or certified copies of, visa records (hereinafter "visa record information") to foreign courts or foreign governments in the following circumstances:
(1) (U) Court Certification: Where a foreign court certifies that documents from a visa record are needed in the interest of the ends of justice in a case pending before the court (INA 222(f)(1)) (see 9 FAM 603.2-7(B)). Note that this is the same standard for U.S. courts. See 9 FAM 603.2-6(D), above;
(2) (U) Administration or Enforcement of U.S. Law: Where release would further the administration or enforcement of U.S. law (opening text of INA 222(f)) (see 9 FAM 603.2-7(C) and (C)(1)); or
(3) (U) Discretionary Sharing Based on Reciprocity: With regard to information from CLASS or, if necessary and appropriate, other related visa records, for use by a foreign government,
(a) (U) with regard to individual aliens, on a case by case basis, to prevent, investigate or punish an act that would constitute a crime in the United States, including but not limited to terrorism, trafficking in controlled substances, persons, or illicit weapons (INA 222(f)(2)(A)) or,
(b) (U) pursuant to a very limited number of agreements with other countries (which have been found to demonstrate reciprocity) to prevent, investigate or punish acts that would constitute a crime in the United States, or to deny visas to persons who would be inadmissible to the United States (INA 222(f)(2)(B)). (See 9 FAM 603.2-7(C) and (C)(1).)
(c) (U) For requests for visa records from the governments of Canada, Australia, New Zealand, or the United Kingdom, please see 9 FAM 603.2-7(C)(1) paragraph c(2), which further elaborates on subsection (a)(3)(b) immediately above.
(1) (U) Privacy Act Protections for Information on U.S. Citizens and Lawful Permanent Residents (LPRs): Any release of visa records under INA 222(f) to foreign courts or foreign governments is limited by applicable Department Privacy Act guidelines and regulations. You may release information obtained from visa records regarding a person who is a U.S. citizen or an alien lawfully admitted for permanent residence only in conformity with applicable Department Privacy Act guidelines and regulations, including accounting-of-disclosure provisions. Where the information in question is obtained from nonimmigrant visa records, you may assume that the subject individual is not a U.S. citizen or permanent resident alien, unless you have knowledge to the contrary. Where the information is obtained from records regarding an issued immigrant visa, however, you should assume that the subject individual is a U.S. citizen or permanent resident alien, unless you have knowledge to the contrary.
9 FAM 603.2-7(B) (U) Foreign Court Requests
9 FAM 603.2-7(C) (U) Procedures for Release of Information to a Foreign Government
(a) (U) Post may release such information pursuant to a routine anti-fraud program at a Foreign Service post only pursuant to the express approval of the chief or deputy chief of the consular section; and
(b) (U) You must be satisfied that the information will be used only for purposes that will further the enforcement or administration of U.S. laws, and will not be provided to a court or otherwise used in a court proceeding.
(h) (U) You must keep the Office of Fraud Prevention Programs (CA/FPP) advised of all fraud matters, including releases of information pursuant to this section.
b. (U) Obtain foreign government acknowledgement: Prior to releasing information from visa records to foreign law enforcement or other authorities for investigative or other purposes discussed in 9 FAM 603.2-7, post should obtain a written acknowledgement from the foreign official who would be the recipient specifying that the information:
(1) (U) Will be treated as confidential; and
(2) (U) Will not be used in a foreign court proceeding unless post has obtained Department approval (including from CA/VO/L/R and L/DL) that specifically contemplates that the information will be used in a foreign court proceeding.
(3) (U) If advance written notice from the foreign government is not practicable (generally because of the urgency and importance of a matter) and you are satisfied based upon past interactions that the foreign government will treat the information as confidential, you may release the information. However, you must explicitly premise the foreign government’s use of the information on the understanding that the government will treat the information as confidential and will neither disseminate the information further nor use the information for any purpose(s) other than the authorized purpose. You must also include language on inviolability as specified in 9 FAM 603.2-7(C) paragraph c (immediately below).
c. (U) Limited Waiver of Inviolability: In releasing records to a foreign government, post must explain in writing that the release is without prejudice to any rights, privileges, or immunities that the post or members of the post enjoy under applicable laws or treaties.
If applicable, you must further explain that the information is being provided for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States. The United States has waived archival inviolability to release visa records to foreign government authorities other than courts for routine anti-fraud purposes. Thus you must transmit copies of documents released from visa files in these circumstances under a cover letter that includes:
“The [Embassy's and/or Consulate's] archives and documents are inviolable at any time and wherever they may be. In the circumstances of the present case, the U.S. Government expressly waives the inviolability accorded the attached document(s) from such archives, but only for the limited purpose of making the attached document(s) available to [name of foreign government agency] for the purpose of [describe the purposes of release]. Further dissemination requires the written consent of the United States.”
d. (U) Proactive and Reactive Release of Information: The authority to release information to a foreign government is not limited to action taken in response to a request regarding an individual, but could include, in appropriate circumstances, the proactive release of information. However, regardless of whether the other government has requested visa record information in the particular case, a consular officer may release such information only if the other government has already provided post with written assurances in accordance with paragraph b above.
9 FAM 603.2-7(C)(1) (U) Release to Foreign Government for Preventing, Investigating or Punishing Terrorism or Other Criminal Activity (INA 222(f)(2)(A) and (B))
a. (U) Overview of 222(f)(2)(A):
(1) (U) Pursuant to section 222(f)(2)(A), the Department may approve the release of visa information on a case-by-case basis, on the basis of reciprocity, to authorities of a foreign government if there is reason to believe that the information will be of assistance to the foreign government in preventing, investigating, or punishing acts that would constitute a crime in the United States. Such acts include, but are not limited to, terrorism or trafficking in persons, controlled substances or illicit weapons.
b. (U) Types of Information for Release under 222(f)(2)(A) and (B):
(1) (U) Release of Information from the CLASS Database: "[T]he Department of State's computerized visa lookout database" in section 222(f)(2) should be considered to be a reference to the CLASS database.
(2) (U) Release of Information from “Related” Records When Deemed “Necessary and Appropriate” by the Department:
(a) (U) “Related” Records: For purposes of section 222(f)(2)), the following types of documents are frequently considered "other records covered by this section related to information in the database":
(i) (U) Electronic records (such as Consolidated Consular Database (CCD) or Modernized NIV System documents) reflecting visa application, issuance, or refusal, or name check data;
(ii) (U) Documents submitted by a visa applicant or others relative to a visa application or a determination of whether an alien should be ineligible for a visa;
(iii) (U) A print-out of the DS-160;
(iv) (U) The applicant's photograph;
(v) (U) The applicant's fingerprints;
(vi) (U) A copy of a refusal notice; and
(vii) (U) Any images of such records maintained by electronic means.
(b) (U) "Necessary and Appropriate" Release: The chief or deputy chief of the Consular Section has authority to make a determination that the types of documents listed in (a)(1)-(7) immediately above are “other records covered by this section related to information in the database” and disclose these records, without seeking an AO, where a written reciprocal arrangement or agreement is in place, as set out in subparagraphs c(2)(a) and c(2)(b) below. In all other cases, CA/VO/L/R will determine, pursuant to an AO request, whether it is "necessary and appropriate" to release "related records."
(b) Unavailable (i) Unavailable
9 FAM 603.2-7(C)(2) Unavailable
9 FAM 603.2-8 (U) Releasing visa records or Information to Visa Applicants
a. (U) Providing Information to Applicants: Posts must reveal information in visa records in communicating with a visa applicant regarding such matters as unfulfilled documentary requirements, basic reasons for findings of ineligibility except as provided in paragraph b below, availability of waiver relief, etc. Such release of information in visa records is consistent with the INA 222(f) provision that visa records may be used for the administration of U.S. immigration laws, provided such use is confined to what is operationally necessary to assure the orderly processing of a visa case. Posts may not disclose information that is classified or law enforcement sensitive/SBU, and may not speculate as to the outcome of any visa adjudication. Posts also may not disclose information obtained from other agencies without the approval of the agency that provided the information.
b. (U) Refusal to Release Information for Security Grounds: If an alien was refused a visa for security grounds, you must confine the statement of the reasons for the refusal to a reference to the law or to the Code of Federal Regulations. In no case must the post release information of a confidential nature to the interested party.
c. (U) Non-FOIA or Non-Privacy Act Requests from Applicant: Requests from an applicant or his or her representative for documents or information from the applicant's visa record which do not make reference to the FOIA, nor the Privacy Act, and which do not appear to bear any relation to the current adjudication of a case e.g., visa was already issued or long since denied, may be honored to the extent provided in paragraphs (d) and (e) below.
d. (U) Documents Releasable to Applicant: The documents listed below are deemed releasable to an applicant as they constitute the applicant's original source documents. Consequently, returning the following documents to the applicant does not violate the INA 222(f) requirement of confidentiality. These documents include:
(1) (U) Correspondence previously sent to or given to the applicant by the post;
(2) (U) Civil documents presented by the applicant (see paragraph (f) below); and
(3) (U) Visa applications and any other documents, including sworn statements, submitted by the applicant to you in the form in which they were submitted; i.e., with any remarks or notations by U.S. Government employees deleted.
e. (U) Only Copies May be Released: With the exception of item (2) in paragraph d above (see paragraph f below for instructions on the release of civil documents), post may release only copies (certified or otherwise) of the documents listed in the Note/paragraph d above and must retain the originals in the visa file.
f. (U) Release of Civil Documents, or Copies Thereof, in Visa Records:
(1) (U) You may honor requests for copies of civil documents, such as birth, death, or divorce certificates submitted by an alien in support of a visa if these requests are made by the alien, or his or her attorney or other representative of record.
(2) (U) In addition, except in cases where the requested document generated a finding of ineligibility, for example by being fraudulent, posts may release the original of a civil document retained in a visa file to an interested party. However, before original civil documents may be released, the post must make a copy of the documents for retention in its files.
(3) (U) If the requested documents are not available, as in many cases where immigrant visas have been issued, the post must indicate in its reply that since the documents were attached to the immigrant visa, copies may be obtained upon application to the DHS district office holding the alien's file.
9 FAM 603.2-9 (U) Releasing Visa Records or Information to Attorney and Other Representatives of Record
a. (U) Attorney or Representative of Record Relationship:
(1) (U) Verifying Relationship: When a letter is received from an attorney in the United States and you are reasonably satisfied that an attorney-client relationship exists, correspondence between the post and the attorney may be treated with the same courtesy as provided to the visa applicant. Reasonable evidence establishing the attorney-client relationship may include:
(a) (U) Form G-28, Notice of Entry of Appearance as Attorney or Representative, required for practicing before DHS;
(b) (U) A printed letterhead stationery showing membership in the legal profession (member of a U.S. State or District of Columbia bar association practicing in the United States) and stating that such an attorney has been retained or employed to represent the applicant; or
(c) (U) A letter from the applicant that identifies the attorney or representative with whom the applicant established such relationship.
(2) (U) Doubts: In cases where you have reasonable doubt as to the attorney's claim of representation, you should inform the visa applicant of such a claim and request confirmation of the attorney's legal representation.
(3) (U) Local or U.S.-Licensed Attorneys Practicing Abroad: You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.
(4) (U) Inquiries Concerning Attorney Representation: Each post has the discretion to establish its own policies regarding the extent to which attorneys and other representatives may have physical access to the Consulate or attend visa interviews, taking into consideration such factors as a particular consulate’s physical layout and any space limitations or special security concerns. Whatever policies are set must be consistent and applied equally to all. For example, either all attorneys at a particular post must be permitted to attend consular interviews or all attorneys must be prohibited from attending interviews.
b. (U) Corresponding With Representative of Record: You may correspond directly with the applicant’s representative of record, even in cases where the applicant is physically present in the United States, unless the applicant requests otherwise. However, the fact that there is a representative of record does not preclude the post from corresponding with the applicant (see 9 FAM 603.2-8), provided the post sends a copy of the communication simultaneously to the applicant's representative. If the representative inquires about the reasons for refusal of a visa, the delay in issuing the visa, or any other aspects of a visa case, the reply must contain only pertinent facts which are unclassified.
d. (U) Sample Letter to an Attorney Regarding Case Status:
You can use the ATTORNEY CASE STATUS LETTER to inform an attorney of record of the status of a visa application. The following is a sample text of the ATTORNEY CASE STATUS LETTER:
Consular Section files indicate that you are the attorney of record for the above named visa applicant. For your information:
( ) 1. A visa was issued to your client (and to any accompanying family members) today.
( ) 2. The consular officer did not approve issuance of a visa as indicated on the attached copy of the refusal letter.
( ) 3. Upon obtaining the document(s) indicated on the attached refusal letter, your client may call at this office for a review of the case.
Enclosure: As stated
9 FAM 603.2-10 (U) Releasing Visa Records or Information to Third Parties
a. (U) Other Parties’ Requests for Information:
(1) (U) When a post receives a non-FOIA and/or Privacy Act-related request for information on a specific visa case which is currently in process or under review and the request comes from a party other than the applicant or the applicant's attorney or other representative of record, you must determine whether there is a valid basis for the party's interest in the case. If the interested party can satisfy you that a legitimate basis exists in the applicant's case or if the applicant has authorized such party to receive information about the case, you may use information in the alien's visa record in responding to the interested party's inquiries. Readily established kinship to the applicant is an acceptable basis for personal interest in a visa case.
(2) (U) Congressional correspondence regarding an alien's visa case also qualifies the inquirer as having a legitimate interest in the case, as long as the Congressional office is clearly representing the interests of the applicant and not those of a party who is adverse to the issuance of a visa to the applicant. See 9 FAM 603.2-5 for additional information on sharing visa information with Congress, and 9 FAM 601.7-3 on correspondence with Congressional offices.
(3) (U) If there is a question regarding the qualification of any particular organization that the visa applicant has designated as the representative for the visa case, you must submit a request for an AO to CA/VO/L/A.
b. (U) Requests by Person Other than Visa Applicant Where No File Exists or No Information on File: Generally, post may inform an inquirer, whether official or nonofficial, that the visa record in question does not exist, if such is the case. In these instances, if the case was submitted as a FOIA or Privacy Act request, the post need not refer it to the Department unless the Department, NVC, KCC, or some other post has a file containing this information.
c. (U) Withholding Information: All restrictions imposed on the release of items from visa records to the applicant are applicable to interested "other party" requests. (See 9 FAM 603.2-8.) In addition, you must use discretion in determining whether to reveal information that might cause embarrassment to the applicant. For example, you may decide to refer only to INA 212(a) in an INA 212(a)(2)(D) refusal. However, when specific information regarding a case is being declined, you may suggest that the requester communicate directly with the visa applicant for more specific details.
d. (U) Visa Records Verification: Pursuant to anti-fraud efforts, post may try to verify the bona fide nature of documents presented in connection with visa applications or the veracity of statements made by the applicants. Such verification requires of necessity that information and documents from visa records be brought to the attention of the parties from whom verification is sought. This use of documents and information is authorized under INA 222(f) since it promotes the administration and enforcement of U.S. immigration law. You must limit disclosures to those portions of the visa record that are suspect and to persons who may reasonably be considered to be in position to assist in the verification. You must assure that copies rather than originals are shown to the party from whom verification is requested.