In this telegram, the State Dept. reminds US Consulates of procedures for visa refusals, particularly noting that applications should not be denied on substantive grounds without an interview and that applicants should be advised of the grounds of refusal.

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 213853 (D) 9 FAM 41.102 AND 121

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