| 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 |