Consular Corner’s “Best of FAM” 2013

By: Liam Schwartz*

The sixteen volumes of the Foreign Affairs Manual ("FAM") set forth the responsibilities and authorities of each of the major components of the Department of State ("DOS" or "the Department"). Volume 9 of the FAM is dedicated to visa-related instructions and guidance for consular officers. All sixteen FAM volumes are accessible on the DOS website.

Well over one hundred changes were made to 9 FAM’s visa-related provisions in 2013, including one that is historic: Introduction of the updated definitions of “marriage” and “spouse” for immigration purposes following the Supreme Court decision in United States v. Windsor. DOS made other substantial changes to 9 FAM throughout the year, many of which related to visa refusals and grounds of inadmissibility.

We are pleased to present Consular Corner’s “Best of FAM” review, comprising the more significant changes made to 9 FAM over the past year.

Inadmissibility

Fraud or Willful Misrepresentation (9 FAM 40.63 Notes)

The Immigration and Nationality Act (INA) provides for a number of situations in which a visa applicant is inadmissible to the United States. One of these situations is set forth at INA 212(a)(6)(C)(i):

"Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible."

Application of this ground of inadmissibility is meant to stop foreign nationals from "attempting to secure entry into this country by fraudulent means and then, when the falsity is discovered, proceeding with an application as if nothing had happened." 9 FAM 40.63 N1.1

In March, a number of important changes were introduced to the guidance on how this ground of inadmissibility should be applied.1 1 The March changes to the 9 FAM 40.63 Notes were mysteriously scrubbed from the FAM later in the year, without notice or explanation. We investigate the case of the missing FAM Notes in the December 2013 Consular Corner.)

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Inadmissibility and the 30/60 Day Rule (9 FAM 40.63 N4.7-4, N4.8)

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One method in which an applicant's true intentions can be divined after-the-fact is the "30/60 Day Rule." Under this rule, if a foreign national states on a B-2 visa application, or relates to a CBP officer, that the purpose of the visit is tourism, and then shortly after admission to the U.S. he or she engages in unauthorized work or study, or marries an American citizen and seeks to adjust status, it can generally be presumed that the applicant misrepresented his or her true intention to the consular officer or the Customs and Border Protection ("CBP") officer. Application of the 30/60 day rule is discussed at 9 FAM 40.63 N4.7-1 through N4.7-4.

In March, the Bureau of Consular Affairs (CA) expanded this guidance as it relates to visa interview questions concerning the applicant's prior statements to CBP officers. If the consular officer believes that the applicant may have misstated the true purpose of a previous visit to a CBP officer, then:

"During the visa interview, you, the consular officer, may also question the alien about what the U.S. Customs and Border Protection Officer asked the alien, and what the alien responded, when he or she was previously admitted to the United States. You should write these questions and responses in your case notes to document that you have determined that the alien made an 'act' of misrepresentation…"

9 FAM 40.63 N4.8(a)

Per this same guidance, consular officers who decide to find the applicant inadmissible for misrepresenting the true purpose of a previous visit should ask for Departmental concurrence by submitting an Advisory Opinion ("AO") containing the following descriptions:

(1) Your finding that an act of misrepresentation occurred, and a short description of what the act was;

(2) Any evidence that you have of such misrepresentation from the actual visa application; and

(3) Your finding, along with he evidence on how the alien violated his or her nonimmigrant status within 30 days (see 9 FAM 40.63 N4.7-2); the statement that the applicant has admitted that he or she misrepresented the purpose of his or her visit on the visa application or to the immigration officer.

9 FAM 40.63 N4.8(b)

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False Claims to U.S. Citizenship (9 FAM 40.63 Notes 11-17)

212(a)(6)(C) also creates a separate ground of inadmissibility for foreign nationals who make a false claim to United States citizenship in order to obtain a U.S. passport; or entry into the U.S.; or other benefit under any Federal or State law. March’s CA guidance included significant new instructions relating to application of this inadmissibility. These instructions were set forth in three newly crafted Notes 14, 15 and 16 to 9 FAM 40.63.

N14 (Knowledge of Falsity: Intent and Materiality) emphasizes that before determining an applicant inadmissible for making a false claim to U.S. citizenship, the consular officer must find that the applicant knew that he or she was not a citizen when making the false claim. In other words, no inadmissibility attaches if the applicant "mistakenly believed he or she was a U.S. citizen at the time of the misrepresentation."

N15 (False Claims By Minors) provides that an applicant who made a false claim to citizenship while under age 18 is not subject to this inadmissibility, but only if the applicant convinces the consular officer that, at the time of the false claim, he or she lacked the maturity and judgment to understand the nature and consequences of the false claim.

N16 (False Claims to U.S. Citizenship Under INA 274A) expands on previous guidance relating to the inadmissibility of a foreign national who claims U.S. citizenship to a public or private employer in order to secure work in the U.S. The new CA guidance emphasizes that the applicant must have specifically claimed to be a U.S. citizen (claiming to be a U.S. Legal Permanent Resident in order to secure work does not lead to inadmissibility under this section).

Public Charge (9 FAM 40.41 Notes)

New guidance published in June clarifies which visa applicants are exempt from the Public Charge ground for inadmissibility. Per this guidance, the following visa classes are exempt from INA 212(a)(4):

(1) Nonimmigrants who qualify under INA 101(a)(15)(A) or (G), who are exempt from the public charge provisions of the law under INA 102 (other than those classifiable as A-3 or G-5);

(2) Nonimmigrants who qualify under INA(a)(15)(T);

(3) Nonimmigrants who qualify under INA(a)(15)(U);

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(4) VAWA self-petitioners; and

(5) Qualified aliens described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)).

Unlawful Presence and the 10-Year Bar (9 FAM 40.92 Notes)

A February change to the provisions of 9 FAM related to departures which trigger the 10-year bar. This change was added to the FAM following a 2012 Board of Immigration Appeals case (Matter of Arrabally and Yerrabelly) which discussed departures from the U.S., by people who have been unlawfully present here for an extended period, which do not automatically result in the bar.

The gist of the updated guidance is that a foreign national cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the individual's pending application for adjustment of status.

“K” Visa Classification (9 FAM 41.81 Procedural Notes)

The Procedural Notes relating to applications for nonimmigrant K visas were edited in October to reflect new CA policy on the use of Form DS-160.

CA announced its new policy in an October 13, 2013 cable which provided:

“Effective immediately, the DS-160 Nonimmigrant Visa Electronic Application will replace the DS-156 Electronic Visa Application form (EVAF), the DS-156K (Nonimmigrant Fiance Visa Application), and the paper-based DS-230 Application for Immigrant Visa and Alien Registration (parts I and II) for processing K-1 and K-2 nonimmigrant visa (NIV) applications.”

Accordingly, the very first item in the first K Visa Procedural Note, relating to the records and documents required for presentation at the time of an application, was amended to reflect the requirement to present Form DS-160, Online Nonimmigrant Visa Application. CA adds instructions to consular officers for viewing Forms DS-160 from the Immigrant Visa Overseas (IVO) application within the Consular Consolidated Database (CCD).

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Further on, PN3.2 instructs that consular posts should promptly send K visa applicants instructions for accessing Form DS-160, once the post receives a K visa petition approved by USCIS. PN3.3 provides that upon receipt of the completed Form DS-160, consular officers should initiate clearance procedures. PN4 instructs posts to place a copy of Form DS-160, as printed by the post, in the sealed envelope given to the successful applicant for presentation at the port of entry.

The October 13, 2013 cable includes the following additional procedural notes regarding implementation of the new guidance:

“As we transition to mandatory use of the DS-160 for K visas, the following exceptions apply:

We will not require DS-160s for beneficiaries of cases that have already been scheduled for an interview or have been interviewed and are pending additional documentation or administrative processing.

For cases received at post prior to receipt of this guidance, if petitioners have already submitted a DS-156, DS-156K, or DS-230, or received instructions to do so, you should accept those forms. If you have not yet provided petitioners instructions on how to submit their applications, you must require the DS-160. You should not, as a general rule, require the submission of a DS-160 if a valid, signed, unexpired DS-156, DS-156K, or DS-230 is already on file and requiring the DS-160 would result in a 221(g) refusal for an otherwise issuable case.

You may not, under any circumstances, accept DS-260 Immigrant Visa Electronic Application forms for K visa applications.”

“L” Visa Classification (9 FAM 41.54 N14.5-2)

The playoff between Blanket L visa fees and reciprocity fees was clarified in July thanks to a new provision added to 9 FAM 41.54:

"In order to maintain reciprocal treatment regarding visa fees with the applicant’s country of nationality, the Fraud fee and/or Border Security Act fees must be deducted from any applicable reciprocity fees. The reciprocity fee paid should be the remainder of the cost after other applicable fees have been deducted.

For example, if an applicant has an $800 reciprocity fee, but has paid the $500 Fraud Prevention and Detection Fee, he or she

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would only be required to pay the remaining $300 of the reciprocity fee at time of issuance. Conversely, if an applicant’s reciprocity fee was $400 and they paid the $500 fee, they would have no further reciprocity fee obligation to pay at time of issuance."

The Department also added clarification to 9 FAM 41.54 regarding the issuance of L visa renewals. Per this updated guidance,

"When an applicant applies for a new L visa before their current L visa expires, a consular officer should cancel the current visa and, if otherwise qualified, issue a new L visa for the maximum validity permitted based on reciprocity.

When the applicant’s current petition will expire shortly or the applicant has a new petition number with a validity date in the future, a consular officer must annotate the new visa with the current valid petition information only. U.S. Customs and Border Protection (CBP) will verify the existence of a valid petition upon entry at Port of Entry regardless of the annotation on the visa."

“Marriage,” “Spouse” and U.S. Immigration Law (9 FAM 40.1 N1.1)

On September 19, the Department updated the 9 FAM 40.1 Notes, ensuring that the FAM’s definitions of “Marriage” and “Spouse” reflect the post-Defense of Marriage Act era ushered in by the Supreme Court’s decision in United States v. Windsor. The FAM update itself is backdated to August 2. The updated text deleted 9 FAM 40.1 N1.1 (a), which limited the word "marriage" for immigration purposes to mean "only a legal union between one man and one woman as husband and wife," and the word "spouse" to mean only "a person of the opposite sex who is a husband or a wife."

The newly crafted provisions of 40.1 N1.1 are as follows:

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Nonimmigrant Visa Application Procedure

Canadian, Mexicans and INA 222(g) (9 FAM 40.68 N2.1)

INA 222(g) renders void the visas of nonimmigrants remaining in the United States "beyond the period of stay authorized by the Secretary of Homeland Security.” Moreover, unless it is determined that "extraordinary circumstances" exist, the applicant must apply for a new nonimmigrant visa (”NIV”) in the country of his or her nationality.

The sanctions set forth in INA 222(g) apply only to individuals meeting the following two criteria: (1) Admitted to the United States on the basis of an NIV; and (2) Remained beyond the period of authorized stay. With this in mind, the Department of State clarified the application (or non-application) of INA 222(g) to Canadians and Mexicans by inserting the following provision at 9 FAM 40.68 N2.1:

“INA 222(g) does not apply to aliens:

Who were admitted from Canada or Mexico with an I-68 or DSP-150 Border crossing card, or any other Canadian or Mexican entrants to theUnited States who were not issued with an I-94 (and who were notsubsequently formally found to be out of status by USCIS or an IJ.)”

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Those interested in further examining the applicability of INA 222(g) in a host of possible scenarios should click here for the Department 0f State’s Summary Chart of INA 22(g) Scenarios (9 FAM 40.68 Exhibit I).

MRV Application Fee (9 FAM 41.107 N5)

In May, existing guidance on the Machine Readable Visa (MRV) fee was expanded with the clarification that, with one exception, separate MRV fees much be collected whenever an applicant applies simultaneously for two different visas, such as B-1/B-2 and F-1. The one exception: Only one visa fee is required for a B1/B-2 and C-1/D visa combination.

Poverty Income Guidelines 2013 (9 FAM 40.41 Exhibit I)

The 2013 Poverty Income Guidelines were added to the FAM in February. These guidelines are used in conjunction with the Affidavit of Support (Form I-864) requirement in immigrant visa cases; failure to meet the applicable minimum poverty guideline threshold can lead to inadmissibility under INA 212(a)(4)(C).

Parenthetically, the new poverty guideline for a family of four in the 48 contiguous states and Washington, DC is $23,550. As consumer prices rise, this threshold of American families in poverty continues to expand; last year, the same guideline was $23,050 and five years ago, $21,200.

“R” Visa Classification

R-1 Visas and INA 214(b) ([ 9 FAM 40.7 N1.4])

A long-standing omission was remedied in March by the addition of R visas to the list of visas expressly excluded from the statutory presumption of immigrant intent contained in INA 214(b).

In making this addition to 9 FAM 40.7 N1.4, CA cites to the R classification FAM provisions which provide, in part:

"There is no requirement in the INA that applicants for R status establish that they have a residence in a foreign country which they have no intention of abandoning. An R visa application should not be refused, nor should the petition be returned to USCIS, with a recommendation for reconsideration solely on the basis of a filed or approved request for permanent labor certification or a filed or approved immigrant visa (IV) preference petition."

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“U” Visa Classification for Victims of Criminal Activity(9 FAM 41.85 Notes)

In March 2013, DOS announced changes which "drastically rewrite" the Notes to 9 FAM 41.85. The new "U" FAM Notes elaborate on previous guidance, offering a far greater understanding of the fine points of this visa category. The highlights of the new guidance include the following:

The Role of Consular Offices in Processing U Visa Applicants:

The new guidance informs consular officers as follows:

The Kentucky Consular Center (KCC) creates a record of approved U visa petitions in the Petition Information Management Service (PIMS). Following creation of this PIMS record, "cases are not forwarded to particular posts. U cases can be processed at any NIV-issuing post worldwide." 9 FAM 41.85 N2.2(c)

U visa are processed as petition-based nonimmigrant visas and applicants must use Form DS-160 and schedule an interview appointment just like other petition-based applicants.

A consular officer adjudicating a U visa applicant must use PIMS to confirm that the I-918 petition approval is still valid; that derivative applicants have the proper relationship to the U-1 principal; and that all grounds of inadmissibility have been waived. Parenthetically, the relationship between derivative visa applicants and principal applicant should meet the same evidentiary standards in place for family-based immigration cases. 9 FAM 41.85 N3(b)

U visa applicants may not be refused under INA 214(b) for failure to demonstrate ties to a foreign residence. 9 FAM 41.85 N3(c)

USCIS approval of a U visa petition is prima facie evidence that the applicant meets the requirements for U classification. Consular officers may deny applications if, for example, evidence is developed which was not available to USCIS; but in general, officers "should not re-adjudicate U nonimmigrant status granted by USCIS, or attempt to make a determination of whether the criminal activity involved amounts to qualifying criminal activity." 9 FAM 41.85 N3(e)

New instructions regarding the U visa interview contain specific guidance on interviewing rape victims:

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"You also should not interview the petitioner or beneficiary about the specific details of the criminal activity, the principal’s victimhood, or the principal’s helpfulness and cooperation with law enforcement, which formed the basis of the principal’s qualification for U visa status. Likewise, a family member’s unawareness and unfamiliarity with the criminal act of which the principal was a victim cannot form the basis of a recommendation to revoke. You should not disclose details about the principal’s victimhood to family members because family members may not know about the crime and such awareness may jeopardize the victim’s safety. For example, victims of rape in some cultures are shunned and blamed by husbands. Thus, the victim may have intentionally not disclosed the crime to her husband."

9 FAM 41.85 N3(c)

New guidance is offered regarding the waiver of MRV and reciprocity fees to U visa applicants:

"You do not have authority to waive any fee established in the Schedule of Fees except to the extent that the Schedule itself authorizes the waiver. All exemptions are noted in the Schedule. There are no exceptions to the noted exemptions. Requests for MRV fee waivers, including requests from members of Congress or other government agencies, should be politely declined if the waiver is not clearly authorized by the Schedule of Fees."

New guidance is also offered regarding age-out protection for derivative U visa applicants:

"There is no age-out protection for U-3 (child) derivatives abroad. A U-3 applicant must have his/her visa issued – and must enter the U.S. – prior to his/her 21st birthday, and prior to marrying. You should process U-3 cases as quickly as possible when they are close to aging out."

9 FAM 41.85 N3.3(a)

Consular officers are asked to think twice before applying the public charge ground of inadmissibility in U visa cases:

"The law does not specifically exempt U visa applicants from INA Sec. 212(a)(4). However, given the nature of the U visa program, you should not routinely apply this ineligibility. You should not routinely require applicants to submit I-134 Affidavits of Support."

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9 FAM 41.85 N3.4

The standards to be applied with regard to parental consent for a child's derivative U visa application are the subject of the following new instructions:

"You should not require the U-1 principal to appear at the derivative child’s interview. You may approve a U visa for a child without evidence of consent by a non-appearing parent. You may consider the fact that the child has been issued a passport as evidence of consent from the non-appearing parent. You may also consider a letter of consent from a non-appearing parent as evidence of consent. You are not required to verify custody by the petitioning parent."

9 FAM 41.85 N3.5

Other Highlights

Other highlights of the changes to these Notes include the following:

Adjusting to Permanent Resident Status

Two new factors are added to the previous FAM Note relating to situations in which DHS may exercise its discretion to adjust U nonimmigrant status permanent resident status. These two additional factors are:

(1) The applicant is not subject to the statutory inadmissibility applying to participants in Nazi persecutions, genocide, acts of torture, or extrajudicial killings;

(2) The applicant has not unreasonably refused to provide assistance to a law enforcement agency investigating or prosecuting the qualifying criminal activity.

9 FAM 41.85 N7

Deceased Victims

A new provision provides clarification regarding situations in which the direct victim has passed away:

"Where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated, and therefore

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unable to provide information concerning the criminal activity or to be helpful in the investigation or prosecution of the criminal activity, the alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried sibling sunder 18 years of age, will be considered victims of qualifying activity."

9 FAM 41.85 N1.2(c)

Disclosure of Information

New N1(d) provides that, as a general rule, information relating to applicants for or beneficiaries of U nonimmigrant status may not be disclosed to anyone outside of three government agencies: the Departments of Homeland Security, State and Justice.

Minors

Newly rewritten N1.1 provides new clarification relating to minors. Per this clarification:

If the victim of a crime is under the age of 16, or is incompetent or incapacitated, then a parent, guardian or next friend may be seen as possessing the information about the pertinent criminal activity needed for the victim to qualify for U nonimmigrant status.

If the victim of a crime is under the age of 16, or is incompetent or incapacitated, then a parent, guardian or next friend may provide the assistance to law enforcement needed for the victim to qualify for U nonimmigrant status.

Numerical Limitations

N1(c) Although only a maximum of 10,000 U visas can be granted to principal victims of violence each fiscal year, there is no numerical limit placed on U derivative family members. N2.2 clarifies that victims who are not granted U-1 visa status solely because of the 10,000 cap are placed on a waiting list and will be granted status when new U visas become available at the start of the next fiscal year.

Place of Criminal Activity

Helpful clarification is offered regarding the place where the criminal activity must have occurred in the form of a rewrite of N1.1(4). Interestingly, this rewrite drops the term "Native American territory"

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in favor of "Indian country," which is apparently the correct legal term for any of the many self-governing Native American communities throughout the United States.

"SU" Immigrant Visas

New N10 to 9 FAM 41.85 provides information and guidance regarding "SU" immigrant visas. According to this new Note, consular officers may not approve a U visa application after the principal victim adjusts status to legal permanent resident. Instead, the principal may sponsor his or her derivative family members for "SU" immigrant visas by filing a Form I-929 petition with USCIS. Family members will be eligible to apply for immigrant visas, without numerical limitation, once they are found documentarily qualified and have paid appropriate fees to the National Visa Center. The Form I-864 Affidavit of Support requirement does not apply.

Of particular interest is the advice that there is no age-out protection for children applying for SU-3 immigrant visas. Accordingly, a child must enter the U.S. with his or her SU-3 immigrant visa prior to his or her 21st birthday

Waivers of Inadmissibility

CA instructs Consular Officers to provide U visa beneficiaries with procedural information relating to waivers, should the officer discover any grounds if inadmissibility. The guidance also relates that the authority to waive ineligibilities for U visa applicants rests solely with the VAWA Unit at the USCIS Vermont Service Center. In this regard, the guidance further provides:

"Post cannot recommend or decline to recommend a waiver; however, the VAWA Unit may not be aware of all of the derogatory information related to a U visa applicant, and will consider any derogatory information post wishes to provide when processing waivers."

9 FAM 41.85 N4(d)Visa Refusals

DOS introduced wide-ranging changes relating to visa refusals in February 2013. These changes touch on virtually every aspect of the visa refusal process, from the legal grounds for refusals, to the manner in which applicants and attorneys should be informed of a refusal, to supervisory review of refusals.

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Acronyms and the CCD (9 FAM Appendix E , 101)

In July, the Bureau of Consular Affairs reminded consular officers of the embarrassment it sometimes faces in having to explain visa refusals on the basis of poorly crafted or insufficient case notes. To help reduce the chances for embarrassment, a new addition to the general guidelines urges officers to avoid the use of acronyms:

Manner in Refusing Applicants ( 9 FAM 41.121 N2.3-9)

New guidance urges consular officers to consider the impact of the manner in which visa refusals are conveyed on our country’s image to the applicant and the broader home-country population:

"The manner in which visa applicants are refused can be very important in relations between the post and the host country, as well as to the United States’ image to the applicant and the broader population. You should be courteous at all times and must be careful not to appear insensitive."

Notice to Attorneys

The FAM notes dealing with the working relationship between consular officers and attorneys were updated to reflect the changes to visa refusal guidance.

In the nonimmigrant visa context (9 FAM 41.121 N2.3-2), this new text provides as follows:

"In any NIV case involving a refusal under any provision of the law, you must provide the applicant and any attorney of record a written refusal."

In the immigrant visa context (9 FAM 40.4 N12.2), this new text provides:

"You must send a notification of the action taken at the time of the final immigrant visa appointment to the applicant's attorney of record on a locally reproduced nonstandard form letter (see 9

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FAM 40.4 Exhibit I for a sample that post may wish to use). If the immigrant visa is refused, you must give the applicant a copy of the refusal letter (see 9 FAM 41.121 N2.3-2 and 9 FAM 42.81 PN1.1-1 and PN1.1-2)."

Given that these updates were issued on Valentine's Day 2013, can anyone doubt that they will lead to greater love and understanding in the working relationship between consular officer and attorney?

Review of Visa Refusals

Reviewing Officer (9 FAM 41.121 N2.3-7)

A new addition to this Note provides important clarification as to the breadth and depth of supervisory review of visa refusals:

"The reviewing officer should be the adjudicating consular officer’s direct supervisor, even if that supervisor does not have a consular commission and title. The supervisor must review the case and either confirm or disagree with the refusal. In order to evaluate performance, the supervisor needs to see a regular and representative sampling of the adjudicating officer’s work. The review should focus on, but is not limited to, the potential overuse of 221(g) refusals when 214(b) should be applied, the clear articulation of 214(b) refusals, and verification that 212(a) refusals satisfy applicable law and regulations. While reviewing officers without recent consular experience cannot be expected to know the breadth and depth of visa statutes and regulations, the adjudicating officer should be able to cite Departmental guidance (the INA, FAM, ALDACs, etc.) in support of the refusal. The reviewing officer must indicate his or her decision for all refusals reviewed by marking the appropriate box in the NIV Adjudication Review report in the Consular Consolidated Database (CCD). 22 CFR 41.121(c) specifies that a refusal must be reviewed without delay; that is, on the day of the refusal or as soon as is possible."

Reviewing Officer without Consular Commission and Title (9 FAM 41.121 N2.3-8)

The deletion of four words from a key sentence regarding review by an officer without a consular commission and title could have an unintended impact on the review process. Previously, reviewing officers who did not concur with a refusal were counseled as follows:

"Discuss the basis for the original refusal, especially elements of fact, with the adjudicating officer in a good faith effort to arrive at

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a mutually acceptable final adjudication of the application." (Emphasis added.)

The new guidance is true to the previous text, with one surprising exception – it deletes the words "especially elements of fact." One is left wondering whether reviewing officers should now understand that their discussion with adjudicating officers need not focus on the factual elements of the case.

Visa Refusal Letters

212(a) Refusal Letter (9 FAM 41.121N2.3-3)

The new guidance on visa refusals permits consular posts to continue to draft their own 212(a) refusal letters without prior approval from Washington, provided that the refusal letter meets the following criteria:

1. It sets forth the provision of the law under which the visa is refused, "unless instructed or authorized to do otherwise by the Department;"

2. It neither encourages nor discourages the applicant from reapplying; and

3. It informs the applicant whether a waiver is available.

Alternatively, posts are free to use the text of a newly introduced Optional Refusal Letter, or to modify this optional text as the post sees fit. The Department posted this optional refusal letter as 9 FAM 40.6 Exhibit II.

214(b) Refusal Letter (9 FAM 41.121N2.3-4)

For the first time, consular posts must utilize Department-approved letters in 214(b) refusal cases. This mandate represents a change from prior guidance, which allowed posts to draft their own 214(b) refusal letters without prior approval from Washington.

The new guidance provides as follows:

"In the case of an NIV refusal based on 214(b), posts are required to provide applicants with the Department-approved letter appropriate for the applicant’s circumstances. The prescribed refusal letters are found at 9 FAM 40.6 Exhibits III and IV. 9 FAM 40.6 Exhibit III contains the refusal letter appropriate for those applicants being denied for lack of a residence abroad. 9 FAM 40.6 Exhibit IV contains the refusal letter appropriate for those visa

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classes subject to 214(b), but not the residence abroad requirement."

A week after posting this new guidance, the Department introduced the two above-mentioned 214(b) refusal letters on its website. Both Exhibits end with the advice that 214(b) refusals cannot be appealed, but that the applicant is free to re-apply at any time.

221(g) Refusal Letter (9 FAM 41.121N2.3-5)

Consular posts may also still utilize their own refusal letters in 221(g) refusal cases, provided the letters meet the following criteria:

"(1) Explicitly state the provision of the law under which the visa is refused; (2) Not state that the denial is “temporary” or “interim” or that the case is suspended, although it may reference further administrative processing of the case; (3) Neither encourage nor discourage the applicant from reapplying; and (4) Include the following language: Please be advised that for U.S. visa purposes, including ESTA (the ESTA Web site), this decision constitutes a denial of a visa."

Waivers of Inadmissibility

Provisional Unlawful Presence Waivers (9 FAM 40.9 2 N7)

Consular Affairs published substantial new FAM guidance in July relating to the new Stateside Provisional Waiver procedures. We've summarized this guidance into the following Q&A format, in order to provide a quick read of the new waiver procedures.

Q: What is the purpose of the provisional waiver?

A: The provisional unlawful presence waiver allows a consular officer to issue an immigrant visa to an applicant who is qualified for the visa but for unlawful presence.

Q: Who may be eligible to receive a provisional waiver?

A: Immediate relatives of American citizens who are currently unlawfully present in the United States, and would be found ineligible for an immigrant visa by a consular officer solely because of that unlawful presence.

Q: What form should be used to request a provisional unlawful presence waiver of eligibility?

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A: Form I-601A, filed with USCIS. The Form can be accessed here. Q: What are the eligibility standards for receiving a provisional waiver of unlawful presence?

A: The applicant must generally meet all of the following criteria:

1. Be physically present in the United States at the time of filing the Form I-601A.

2. Be at least 17 years of age at the time of filing.

3. Be the beneficiary of an approved Form I-130 or Form I-360 classifying him or her as an immediate relative (spouse, child, or parent) of a U.S. citizen.

4. Have a pending immigrant visa case based on the approved immediate relative petition for which the IV processing fee has been paid.

5. Be, or will be at the time of the IV interview, ineligible solely on grounds of unlawful presence.

6. Will depart from the United States to apply for a family-based (immediate relative) immigrant visa.

7. Have a U.S. citizen spouse or parent who would experience extreme hardship if the waiver is refused.

Q: Who is automatically ineligible for a provisional waiver of unlawful presence?

A: An applicant is automatically ineligible if either of the following apply:

1. He or she may be subject to grounds of ineligibility other than under that relating to unlawful presence;

2. The National Visa Center ("NVC") or consular post scheduled an IV interview for the applicant before January 3, 2013, the date of publication of the final rule on the provisional waiver for unlawful presence.

Q: What happens when a Form I-601A application is received by USCIS?

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Consular Corner’s “Best of FAM” 2013, by Liam Schwartz

A: USCIS uses the Consular Consolidated Database (CCD) to confirm that under the Department of State did not act to schedule the applicant for an IV appointment before January 3, 2013. If there was no such action, USCIS then notifies the NVC that the applicant has applied for an I-601A provisional unlawful presence waiver.

Q: What does the NVC do upon being notified of the application?

A: NVC notifies the applicant that it will not schedule the case for an IV appointment until USCIS notifies NVC of its adjudication decision.

Q: What happens when USCIS notifies NVC of its decision on the application for a provisional unlawful presence waiver?

A: NVC schedules the case of any documentarily-qualified applicant for an immigrant visa appointment, notifies the applicant of the appointment date, and forwards the case to the consular post for processing.

Q: What is the effect of an I-601A provisional waiver?

A: An approved I-601 provisionally waives inadmissibility based on a finding of unlawful presence, to be made by a consular officer at the applicant's immigrant visa interview.

Q: If the provisional waiver has been approved, does the consular officer still need to formally refuse the immigrant visa because of the applicant's unlawful presence?

A: Yes: The consular officer must make a formal finding of ineligibility and refuse an immigrant visa applicant with an approved I-601A provisional waiver. After making the refusal, the consular officer may immediately proceed to authorize issuance of the visa by waiving the refusal.

Q: When does the I-601A waiver take effect?

A: The waiver takes effect once the consular officer determines that, the finding of unlawful presence apart, the individual is otherwise eligible for the immigrant visa.

Q: What is the validity of an I-601A waiver?

A: Once the provisional unlawful presence waiver takes effect, the ineligibility is permanently waived.

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Consular Corner’s “Best of FAM” 2013, by Liam Schwartz

Q: Can an approved provisional waiver be revoked?

A: Yes. The approved provisional unlawful presence waiver is automatically revoked if the consular officer finds the applicant ineligible for the immigrant visa for reasons in addition to the unlawful presence. The provisional waiver can also be revoked if the approved I-130 petition is itself revoked or withdrawn.

Q: What happens if USCIS denies the application for an I-601A Provisional Waiver of Unlawful Presence?

A: The applicant must leave the United States to appear for his or her immigrant visa interview and submit a Form I-601, Application for Waiver of Grounds of Inadmissibility, to USCIS after a consular officer has found the applicant ineligible for a visa under INA 212(a).

Happy New Year, and see you in 2014!

*Liam Schwartz is the principal in Liam Schwartz & Associates, a corporate immigration and consular law firm. Schwartz was selected to the list of the Ten Most Highly Regarded Individuals in the field of Corporate Immigration Law 2013 (Who's Who Legal). Liam can be reached on Facebook, Linked-In and Twitter and by email at Liam@lsa-law.com. All rights reserved to the author.

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