Processing NIV Applications From Non-Resident Third-Country Nationals

UNCLASSIFIED

CA/VO/F/P:Phill:PLH
03/20/96, EX3-1166, W-0999P
CA/VO:DTHamilton

CA/VO:DJHopper CA/VO/L:CDScullyIII S/S-O:

Routine ALDAC

CA/VO/F:AMarwitz
CA/VO/P:MBellows
CA/VO/F/P:PButenis

VISAS

E.O. 12356: N/A
TAGS: CVIS
Subject: Processing NIV Applications From Non-Resident
Third-Country Nationals

Ref:

1. Summary: Shrinking resources and a growing number of applications for visas from stateside third-country nationals (TCN's) at our border posts in Canada and Mexico have forced CA/VO to reconsider procedures for accepting these applications. Since this clientele shifts from one border post to another, depending on which are more generous in accepting applications, we decided that a uniform approach for all of the posts was necessary. We are sharing with all posts the results of our consultations with the border posts, AILA, the National Assoc. of Foreign Student Advisors, and House and Senate staffers because this issue is of world-wide relevance. We urge all posts to consider the factors in paragraphs 3 and 4 when adjudicating out of district cases. End summary.

2. In order to monitor and control the flow of Stateside TCN's to the border posts, we have established one centralized system for all of the border posts for these applicants. This system is run by a contractor in Ottawa and is paid for by the applicant who must call a 900 telephone number to make an appointment. [FYI, the telephone number in the U.S. is 900-443-3131; in Canada, 900-451-2778. Operators will be available from 9am to 10pm, EST.] The system is flexible, allowing posts to schedule fewer appointments on days when staffing is expected to be down or workload particularly heavy. Operators will be able to schedule appointments at any of the border posts for applicants calling from anywhere In the U.S. or Canada. Applicants can choose to apply at any post that has appointments available regardless of visa category or their place of residence in the U.S. the operators will not screen out cases but an information sheet that the contractor will send out to confirm the appointment will advise that certain types of applicants may encounter difficulties when they apply for their visas

3. The appointment system itself will not result in a significant reduction in TCN applications at the border posts. It will simply impose more order on the process. We expect, however, that more clearly articulated standards for adjudicating these cases will result in more TCN applicants deciding to apply in their home districts. Officers at border posts have been advised that when TCN applicants appear for their appointments, they should accept the applications and charge the USD 20 MRV fee. Cases that officers can positively adjudicate should be issued. If grounds of refusal under 212(a) or 214(b) exist, officers should refuse under those grounds. If the interviewing officer is unable to determine the applicant's eligibility, the case will be refused under section 221(g) and applicants referred to their home district.

4. In deciding whether or not applicants can be issued a visa or should be refused under section 221(g) and referred to their home districts, officers at border posts will bear in mind several special factors, including the following: -- Fraud Profiles: The department periodically transmits information identifying fraud profiles, listing fraud indicators, etc. If it is found, after review of a given case that it falls within such a profile, the case can sometimes be adjudicated to conclusion at the post of application. In other cases, given fraud considerations, officers will decide that the case would best be considered at the place of residence. VO will support posts in their decisions to not adjudicate cases in such circumstances.

-- Out-of-Status Applicants: This condition has a varying degree of importance in NIV cases. In cases involving immigrant intent (section 214b), the condition of out-of-status plays an important role. Indeed, in most circumstances, the longer an applicant was out of status, the greater is his/her burden of overcoming the presumption of immigration. There is , however, no designated period of time which results in automatic refusal or even automatically raises the level of suspicion, as each case rises or falls on its own merits. It may well be that applicants who were out of status should be referred to their home districts where superior knowledge of local conditions will make a possible a better evaluation of section 214(b) eligibility. VO will support posts in such decisions.

Cases where section 214(b) does not apply, such as H-1's and L's are less problematic. Familiarity with local conditions to assess intent to return to foreign residence is irrelevant in these cases. Yet such cases are still subject to review on other grounds, including possible fraud. In some of these cases it may be appropriate to refer the applicants to the post of residence for those reasons.

-- VWPP Cases: As posts are aware, persons who entered the U.S. under VWPP may not adjust status. Due to their proximity, border posts are attractive venues for visa applications in these circumstances. Such cases should be considered on their individual merits. They constitute, however, a class of applicants who as nationals of low refusal rate countries might be served easily by mailing their applications to the post of residence.

-- E Visa Cases: Due to input from the border posts, we intend to propose a regulation that will require first time E visa applicants to apply in their home districts.

5. The new TCN procedure will mean that more applicants may travel to their home districts to apply for their visas or apply in other third countries. In the case of TCN's, non-border posts should follow the same standards as those set forth in paras 3 and 4. If posts find that they start getting requests from attorneys to take TCN cases resident in the U.S. they should inform VO/F/P.

6. Overseas posts may handle the cases of stateside TCN's from their consular districts by mail per 9 FAM 41.101. We encourage this practice where waiver of personal appearance is appropriate. In order to minimize the expense of processing such cases, we suggest that all posts accepting stateside cases by mail require that the applications and passports be submitted by express mail service with paid return envelopes. Otherwise, posts would either have to incur the expense of express mailing passports back or deal with the Inquiries that returning them via international mail would inevitably generate. Posts which accept these cases by mail should return the passports requesting a personal interview when needed.

7. We have already polled some posts informally by E-mail about their willingness to accept such cases by mail. Other posts are requested to report on their policy re processing applications by mail when the applicant is in the U.S. posts that do accept applications by mail should provide detailed procedures and we will post them on CA's worldwide web page.