9 FAM 306.2
(U) Overcoming a Refusal
(CT:VISA-1910; 02-12-2024)
(Office of Origin: CA/VO)
9 FAM 306.2-1 (U) Overview
(CT:VISA-1370; 09-17-2021)
(U) INA 291 places the burden ofproof upon the applicant to establish eligibility to receive a visa. Youshould, however, consider any evidence presented to overcome a presumption orfinding of ineligibility. It is the policy of the U.S. Government to give theapplicant every reasonable opportunity to establish eligibility to receive avisa. This policy is the basis for the review of refusals at consular officesand by the Department. Regarding cases with classified information, you shouldcooperate with the applicant consistent with security considerations and withinthe reasonable, non-arbitrary, exercise of discretion in the subjectivejudgments required under INA 214(b) and 221(g).
9 FAM 306.2-2 (U) Justificationsfor Overcomes
9 FAM 306.2-2(A) (U) When a RefusalMay Be Overcome
(CT:VISA-1910; 02-12-2024)
a. (U) 221(g) Cases: You shouldfind that an IV or NIV applicant has overcome a refusal under INA 221(g) in twoinstances: when additional evidence is presented, or administrative processingis completed.
(1) (U) Additional Evidence Presented:When the applicant has presented additional evidence to attempt to overcome aprior refusal, you should re-open and re-adjudicate the case by overcoming theprior INA 221(g) refusal and determining whether the applicant is eligible fora visa. Examples include:
(a) (U) An IV applicant missinga required document, a birth certificate, for example, should be refused under INA221(g) pending that certificate (see 9 FAM403.10-3(A) for guidance on INA 221(g) refusals). When the applicant submitsthe required document, you should overcome the previous INA 221(g) refusal anddetermine whether the applicant is now eligible for the visa.
(b) (U) Similarly, you shouldovercome the INA 221(g) refusal and processthe case to completion if an applicant presents sufficient evidence to addressconcerns that they might be ineligible under INA 212(a)(4) as a public charge.
(c) (U) The amount of time theapplicant has to overcome a refusal is not indefinite.
(i) (U) For IV cases, theapplicant has one year from the date of refusal to produce additional evidence"to overcome the ground of ineligibility on which the refusal wasbased." If an IV applicant wants to present additional evidence after oneyear, the applicant must submit a new DS-260 and pay a new IV fee.
(ii) (U) For NIV cases,Department regulations do not set a time limit on accepting additional evidenceto overcome a refusal. Consular managers may use discretion in setting anappropriate policy, but no additional evidence provided one year or more afterthe refusal should be considered without requiring a new application and fee. Ifyou set a period of less than one year in which additional evidence will beaccepted, keep in mind that you may not charge an additional MRV fee toapplicants refused under INA 221(g) whor*-apply within one year of that refusal (see 9 FAM 403.4-2).
(2) (U) Administrative Processing Completed:
(a) (U) A prior INA 221(g) refusalentered for administrative processing may be overcome once you can determineadministrative processing is completed and you receive any required AO responseor other needed information.
(b) Unavailable
b. (U) 214(b) Cases:
(1) (U) In general: Most casesrefused under INA 214(b) are refused because the applicant has not convincedthe officer of their intent to return abroad after their stay in the UnitedStates, as required under INA 101(a)(15)(B) (see 9 FAM402.2-2(C) and 9 FAM 302.1-2).Except in unusual cases, as described in 9 FAM 403.10-4(B) paragraph e, these refusalsshould not be overcome. Instead, you may suggest the applicant reapply whenrelevant circ*mstances have changed. If you believe you have an unusual casein which an INA 214(b) refusal waserroneous and should be overcome, you should discuss it with your supervisor.
(2) (U) Refusal in error: Overcome/Waive(O/W) may be appropriate for refusals under INA 214(b) in cases where asupervisor determines the INA 214(b) refusal clearly was made in error; forexample, if the supervisor determines the adjudicating consular officerincorrectly found the applicant did not fit the standards of the NIVclassification for which they had applied (see 9 FAM302.1-2(B)(4)) or the supervisor determines, following a re-interviewin-person or by telephone, that the applicant’s circ*mstances overcomethe INA 214(b) presumption of immigrantintent, based on local conditions and any written adjudication standardsestablished by the manager. If a supervisor intends to overcome a denial in sucha case, they should discuss it with the refusing officer and take personalresponsibility for the case and complete adjudication following there-interview.
c. (U) 212(a) Refusals:
(1) (U) An applicant canovercome an IV or NIV refusal under INA 212(a) bypresenting sufficient evidence to convince you that the ineligibility no longerapplies.
(2) (U) Public Charge Refusals Under212(a)(4)(A) and Additional Evidence: Additional evidence can take manyforms, including a new affidavit of support, an amended tax return, evidence ofadditional assets, or evidence of employment. You must evaluate the additionalevidence using the “totality of circ*mstances” criteria in 9 FAM302.8-2(B)(2), considering thecredibility of the evidence. Keep in mind that a sudden, unexplainedadjustment of income or assets that allows an affidavit of support to exceedthe Federal Poverty Guidelines, without a sufficient credible explanation forthe change in financial status and expectation that the change is permanent,would likely have little credibility in determining that the applicant’soverall circ*mstances have changed.
d. (U) Documenting Overcome/Waive:All Overcome/Waive decisions must be supported by notes explaining the error oradditional information that resulted in the determination to Overcome/Waive theprior refusal.
9 FAM 306.2-2(B) (U) Change ofCirc*mstances
9 FAM 306.2-2(B)(1) (U) 214(b)Refusals
(CT:VISA-1621; 09-07-2022)
(U) Most refusals of NIVs are madeunder INA 214(b) which requires that every visa applicant (except thoseapplying for the L and H-1B categories) is presumed to be an immigrant until theyestablish entitlement to nonimmigrant status under INA 101(a)(15) at the timeof application for a visa. There is no waiver of this ground of ineligibility,nor is it a permanent ground of ineligibility. The determination that the applicantis not a nonimmigrant (i.e., is an intending immigrant) can be made only based onthe facts existing at the time of a specific visa application. The fact that avisa applicant was unable to establish that they qualified for an NIV at one time would not preclude suchapplicant from qualifying for a visa later by showing a change incirc*mstances.
9 FAM 306.2-2(B)(2) (U) Overcominga Refusal Based on a Removal of a DHS Finding of Ineligibility
(CT:VISA-1370; 09-17-2021)
Unavailable
9 FAM 306.2-2(C) (U) NeverDelete a Case That Meets the Definition of “Making a Visa Application”
(CT:VISA-1910; 02-12-2024)
(U) You must never delete a case that meets the criteriafor having made a visa application as outlined in 9 FAM 403.2-3.Never delete a refusal from the system.
(1) (U) Even if the refusal isoverturned, there must be a record of the original adjudication and subsequentdecisions.
(2) (U) Officers should usethe overcome/waive functions in the NIV and IVO systems when appropriate. See 9 FAM403.10-4(B) and 9 FAM504.11-4(A).
(3) (U) You should only deletecases from the system when no visa application has been made per 9 FAM 403.2-3,or when a case is clearly a duplicate entered in error. See 9 FAM 403.2-7 for information on deleting cases.
(4) (U) An NIV record withoutan application can occur when cases have been data-entered but the case doesnot meet the definition of having made a visa application (see 9 FAM 403.2-3).
(5) (U) Some visa sections maystill have test cases in the system that were put in during IV or NIV systeminstallations. You may delete those cases.
(6) (U) Deleted cases will nolonger be available in post’s database, but they may be found in the CCDusing the Deleted NIV Applicant Full report under the NIV tab in the CCDmenu.
9 FAM 306.2-2(D) (U) Waivers ofIneligibility
(CT:VISA-1621; 09-07-2022)
(U) You should refer to theineligibility-specific notes in 9 FAM 302.1 through 9 FAM 302.14 as well as the notes in 9 FAM 305.1 through 9 FAM 305.4 regarding waivers for information regarding theavailability of waivers of ineligibility for IV and NIV applicants.
UNCLASSIFIED (U)
