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Citations for ILW.COM's Seminar
Consular Processing For Experts
Session 2 held on June 21

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From Noah Klug

    Foreign Affairs Manual (FAM)

    Mr. Klug did not mention these Foreign Affairs Manual (FAM) citations during the call, but thinks they would be helpful in understanding the concepts of 214(b) and 221(g) denials.

    9 FAM 41.121 PN1.1 Visa To Be Issued or Refused
    (CT:VISA-1079; 10-17-2008)
    A nonimmigrant visa (NIV) must be issued or refused in all cases once an application is executed. Visa refusals must be based on legal grounds; that is, on the provisions of INA 212(a), (e), or (f), INA 214(b) or (l), INA 221(g), INA 222(g), or some other specific legal provision. A quasi-refusal (e.g., P6C, P6E, etc.) may not be used as the sole ground for a refusal (see 9 FAM 41.121 PN2 for quasi-refusal procedures).

    9 FAM 40.7 N1.3 Standards for Applying INA 214(b)
    (CT:VISA-1420; 04-12-2010)
    a. When adjudicating NIV applications, you must be careful to recognize that the standards for qualifying for an NIV are found in the relevant subsections of 101(a)(15) and corresponding regulations and FAM guidance, not in 214(b) itself. INA 214(b) does not provide any independent standards for qualifying for an NIV. The applicant's failure to convince you that he or she meets any one of the specific requirements of the applicable NIV category will result in a 214(b) denial. (See 9 FAM 41.11 N1.5.)
    b. For example, failure to possess sufficient funds to cover educational expenses results in a 214(b) denial of a student visa. Failure to make a substantial investment results in a 214(b) denial of a treaty investor visa. And the failure to possess the intent not to abandon a foreign residence results in a 214(b) denial of a B visa. In each of these cases, the visa is denied under 214(b) because the applicant has not met the requirements set out for that particular visa category.
    c. The 214(b) basis of refusal may be overcome if the applicant demonstrates to your satisfaction that he or she lawfully meets and will abide by all the requirements of the particular NIV classification.

    (CT:VISA-1420; 04-12-2010)
    a. Section 214(b) cannot be simplified to mean only that applicants have "ties" or must intend to return home. A refusal under 214(b) means that the applicant has failed to qualify for NIV status. The most common reason that an applicant fails to qualify is a failure to show the sufficient ties to his or her home country that are required for most NIV classifications. However, while a failure to show sufficient ties is the most common reason for a 214(b) finding, there are other reasons that an applicant could fail to qualify for NIV status and thus be found inadmissible under 214(b).
    b. Section 214(b) requires the visa applicant to establish to the satisfaction of the consular officer that he or she is entitled to nonimmigrant status under INA 101(a)(15). As stated above, this simply means that the NIV applicant must prove to you that he or she meets the standards required by the particular visa classification for which he or she is applying. In other words, the applicant must make a credible showing to you that all activities in which the applicant is expected to engage while in the United States are consistent with the claimed nonimmigrant status. Proper visa adjudication requires you to assess the credibility of the applicant and of the evidence he or she submits in support of the application. INA Section 291 places the burden of proof at all times on the applicant.
    c. If you are not satisfied that the applicant meets the standards required by the particular visa classification for which he or she is applying, you must refuse the applicant under 214(b). This is the case regardless of the applicant's financial situation or ties abroad and regardless of whether there is sufficient evidence to refuse the applicant under another section of the law (for example, 212(a)(2)(C), 212(a)(3), 212(a)(6)(C), or 212(a)(6)(E)).

    9 FAM 40.6 N4.1 Overcoming a Refusal
    (CT:VISA-1633; 03-14-2011)
    a. You should find that an applicant has overcome an immigrant visa (IV) or nonimmigrant visa (NIV) refusal under INA 221(g) in two instances: when the applicant has presented additional evidence, allowing you to re-open and re-adjudicate the case, or when the case required additional administrative processing, which has been completed. An IV applicant missing a birth certificate, for instance, should be refused INA 221(g) pending that certificate (see 9 FAM 41.121 N2 for guidance on INA 221g refusals). When the applicant returns with the document, you should overcome the previous refusal, allowing the case to be adjudicated.
    b. Similarly, if an applicant refused under INA 212(a)(4), subsequently presents sufficient evidence to overcome the public charge inadmissibility, you should process the case to completion. 22 CFR 42.81(e) "limits the period of review of an IV refusal to one year from the date of refusal." 9 FAM 40.41 N12 provides guidance on when to use INA 221(g) and when INA 212(a)(4) would be more appropriate.
    c. In a case in which you are unable to issue a visa because additional administrative processing was required, you should determine that the INA 221(g) refusal has been overcome once you receive the needed information. Thus, if post needs to do a fraud investigation or send a Security Advisory Opinion (SAO), there should be a 221(g) entry made at the end of the interview, and the case should be reopened when the additional information is obtained. (See 9 FAM Appendix G 501.5.)
    d. In general, you should not find that an applicant has overcome a refusal under INA 214(b). Most INA 214(b) cases are refused because the applicant has not convinced the officer of his or her intent to return abroad after his or her stay in the United States, as required under INA 101(a)(15)(B) (see 9 FAM 41.31 N2.3 and 9 FAM 40.7 Notes). As such, the only way to reassess the applicant's eligibility would be for the applicant to reapply. In this situation, you should create a new case in the system.
    e. However, Overcome/Waive (O/W) may be appropriate for INA 214(b) cases when a supervisor believes the INA 214(b) refusal was in error; for example, if you did not believe the applicant fit the standards of the particular NIV classification for which he or she had applied (see 9 FAM 40.7 N1.1). If a supervisor overcomes such a case he or she should discuss it with the refusing officer and take personal responsibility for the case.

    9 FAM 41.121 N2.4 Reactivation of Case Refused Under INA 221(g)
    (CT:VISA-1514; 09-13-2010)
    An applicant who has been refused under INA 221(g) need not complete a new NIV application form, or pay the machine readable visa (MRV) fee again, if less than one year has elapsed since the latest refusal. When the requested documentation is submitted by the applicant or the necessary clearances received, the original Form DS-156 or Form DS-160 is to be retrieved from post's files, the new information noted, and the visa either issued or refused. If one year or more has elapsed since the latest refusal, the applicant must submit a new Form DS-160 or Form DS-156 and pay the MRV fee again in order for the case to proceed. If the cause of the delay leading to the 221(g) refusal is a lack of U.S. Government action, or U.S. Government error, the period of reapplication is extended indefinitely. Hence, the MRV fee is not charged again when the application is pursued.