DOS Cable Discusses Visa Refusal Procedures
UNCLASSIFIED
TELEGRAM
June 12, 2001
To:
ALL DIPLOMATIC AND CONSULAR POSTS
- ROUTINE
Origin:
VO
From:
SECSTATE WASHDC (STATE 102813 - ROUTINE)
TAGS:
CVIS, CMGT
Captions:
None
Subject:
REMINDER REGARDING VISA REFUSAL PROCEDURES
Ref:
A) 99 STATE 185477 (B) 97 STATE 114760 (C) 93 STATE
1.
SUMMARY. Questions often
arise about visa refusal procedures and the necessity of interviews. While we in
CA will explore the possibility of expanding the circumstances under which
consular officers may adjudicate visa applications without interview, I am
sending this message because I want to remind all consular officers of the
current rules that must be followed for refusals of visas.
It is important that consular officers follow all statutory and
regulatory provisions in the issuance and refusal of visas. While we are under
constant pressure to find management solutions to the ever-present circumstance
of decreasing resources, we must exercise caution and work within the
fundamental legal framework that governs visa adjudication law as we create new
ways of performing our responsibilities. This is not simply a matter of
traditionalism or resistance to change. CA takes all recommendations for
streamlining seriously. In evaluating suggestions to streamline the visa
process, one of our primary considerations is whether the suggestion is
consistent with the consular officer's unique role in adjudicating visa
applications and with the principles that underpin the doctrine of consular
nonreviewability. We are wary of any practices or procedures that may encroach
on or in any way potentially jeopardize this doctrine, and it is partially for
this reason that we have decided that mail-in applicants should not be denied on
substantive grounds without an interview.
2.
It is essential that all consular officers adhere strictly to the following key
rules regarding visa refusal procedures, even as we continue to consider
suggestions for streamlining the process:
--
Consular officers should not refuse visa applicants on substantive grounds
without first giving the applicant an opportunity to be interviewed in person.
--
When refusing a visa application, consular officers should inform the applicant
of the section of the law under which the visa was refused, as well as the
underlying factual basis for the refusal, unless the facts are classified or SBU.
--
When the refusal is based on substantive grounds (i.e., other than 221(g)), the
explanation for the refusal should be done in person at the time of interview.
END SUMMARY
NO
REFUSALS WITHOUT AN OPPORTUNITY TO BE INTERVIEWED
3.
As stated in 9 FAM 41.121 N2, it is the policy of the Department of State to
give visa applicants every reasonable opportunity to establish their eligibility
to receive a visa. This policy is in keeping with the spirit of American justice
and fairness.
4.
In line with this policy, consular officers should not refuse a visa application
on substantive grounds (i.e., grounds other than 221(g)) without first calling
the applicant in for an interview. This policy is based on the fundamental
principle of fairness that the alien should be given an opportunity to be heard
and to personally make his/her case to a consular officer.
5.
This policy also helps ensure that our visa determinations are sound and as
accurate as possible and reflects the unique ability of the consular officer to
resolve questions of credibility based on first-hand interview of the applicant.
As noted in 9 FAM 41.121 PN1.2(h)(3), in cases where nonimmigrant intent is an
issue, consular officers should rely primarily on the interview itself and only
minimally on supporting documentation. While review of the OF-156 is an
indispensable step in assessing a visa applicant's eligibility, when it comes to
judging credibility -- a key issue in cases in which immigrant intent is an
issue -- there is simply no substitute for a personal interview. Without an
interview, consular officers could end up refusing qualified aliens who may have
appeared weak on paper but could have overcome the presumption of immigrant
intent through a strong showing of credibility at the time of interview.
6.
22 CFR (9 FAM) 41.102 requires most aliens seeking nonimmigrant visas to apply
in person and be interviewed by a consular officer. Although 22 CFR 41.102(a)
allows posts to waive personal interviews in certain classes of NIV cases, the
principal purpose behind this regulation is to permit waiver of the interview
when it is clear that the alien is eligible for the visa and an interview would
be an unnecessary inconvenience. As noted in 9 FAM 41.102 PN1, the OF-156 was
designed to enable consular officers to determine whether a visa may be issued,
repeat, issued without an interview. It was not designed with the intent that it
alone would be sufficient to establish that an alien was not eligible for a visa
and could therefore be refused without an interview.
7.
For the above reasons, posts should not use the authority of 22 CFR 41.102(a) to
waive visa interviews in order to refuse a visa applicant under INA 214(b) or
some other substantive ground. Rather, per 9 FAM 41.102 PN2, if a consular
officer is in doubt concerning the visa eligibility of an NIV applicant whose
application was submitted by mail or messenger, the officer shall request the
alien to appear in person.
8.
We recognize that this policy has workload implications and also may engender
complaints from some aliens who may travel great distances for interviews, only
to be refused. Nonetheless, we believe that fundamental fairness requires us to
follow this policy. We are however exploring modification of this policy which,
while remaining true to the underlying principle of fairness, may provide for
avenues to reduce some workload in this area. Such modifications will require
regulatory changes. Posts will be informed as soon as any such amendments are
implemented.
PERSONALLY
INFORM THE APPLICANT OF THE GROUND OF REFUSAL
9.
INA 212(b) and 22 CFR (9 FAM) 41.121 and 42.81 require consular officers to
inform the applicant of the provision of the law upon which a refusal is based.
In addition, as noted in refs B and C, it has been the long-standing policy that
consular officers generally should also inform the applicant of the factual
basis underlying the refusal. However,
the underlying factual information should not be divulged to the applicant if
the information is classified or SBU, or if it was obtained from another agency
and the agency has not authorized release of the information.
10.
As with the no-refusal-without-an-interview policy, the policy of informing the
applicant of the facts underlying the denial is rooted in notions of fundamental
fairness and also serves to ensure that our visa decisions are based on a
thorough and accurate understanding of the facts. From a fairness perspective,
the applicant, where possible, ought to be told the factual basis for the
finding so that he understands the decision and has a reasonable opportunity to
rebut it. In addition, if the consular officer's decision is based on an
erroneous understanding of the facts, there is a significant likelihood that the
factual error will be corrected by the alien when the consular officer informs
the applicant of the officer's factual findings, thus increasing the likelihood
that a proper decision will be made.
11.
9 FAM 41.121 PN1.2 states that when an alien is found ineligible to receive a
visa, the consular officer should inform the alien orally of the basis for the
refusal, in addition to the required written notice. Per Ref A, while we are
willing to permit consular officers to forego an oral explanation in cases
involving non-substantive refusals under 221(g), we do not believe it is
appropriate to substitute a written explanation for an in-person oral
explanation in cases where the refusal is based on 214(b) or some other
substantive ground. As noted above, such refusals require a personal interview,
and the required oral explanation of the basis for the refusal can be made at
the end of the personal interview.
12.
While providing a thorough oral explanation for the basis of the refusal may
take a little more time, in the long run it saves work for everyone. Inadequate
(or no) explanations for refusals merely prompt subsequent written and phone
inquiries from the applicant, his/her family, members of Congress, and others.
Many such inquiries are directed to VO, which must then contact post to find out
the basis for the refusal. Regardless of whether post is contacted by VO or by
the inquirer directly, post ends up having to provide a report on the basis for
the refusal, and in most instances the time spent on such follow-up queries, at
post and in the Department, far exceeds the time it would have taken to provide
a sufficient explanation at the time of interview.
13.
We know that many of you would like to be able to further streamline the NIV
application process and rely to a greater extent on mail, drop box, and other
procedures that do not require personal appearance. We agree that this is a very
worthy goal, and we fully support you in your efforts to streamline the process
for visa issuances. Visa refusals,
however, require extra protections, and there are limits to how far we can go in
that area. While we understand that prohibiting substantive refusals by mail
will have workload implications, we want to be as fair as we can to those
applicants we refuse, and we do not want to risk consular nonreviewability for
the sake of efficiencies in processing. It is in light of these constraints that
we are reminding posts to continue following current refusal procedures, as we
examine possible regulatory changes that might address some of the workload
concerns while still ensuring that refused applicants are given full and fair
consideration of their cases. Warm regards.
POWELL