InfoNet Title: DOS on Refusals Keyword: GROUNDS REFUSAL DOS STATE ATTORNEY CONSULAR Abstracts: Posts are reminded that Consular Officers should inform visa applicants of both the section of the law under which a visa was refused and the factual basis for the refusal, unless the information is classified or sensitive but unclassified (SBU). In all IV cases and in any NIV case involving a 212(a) refusal, posts must also provide the applicant (and any attorney of record) with a written refusal letter setting forth the ground of refusal. If there is a problem with a case and a Consular Officer submits the matter to the Department for an advisory opinion, ConOff should so advise the applicant (and attorney) and, unless the matter is classified, should indicate why the case has been referred to the Department. ============== R 181843Z JUN 97 FM SECSTATE WASHDC TO ALL DIPLOMATIC AND CONSULAR POSTS SPECIAL EMBASSY PROGRAM AMEMBASSY BUJUMBURA/ZEN POUCH AMEMBASSY KINSHASA/ZEN POUCH AMEMBASSY SARAJEVO/ZEN POUCH UNCLAS STATE 114760 VISAS, INFORM CONSULS E.O. 12958, N/A TAGS: CVIS Subject: Informing Visa Applicants of Ground for Refusal Ref: (A) 93 State 213853 (B) 9 FAM 41.121, 9 FAM 42.81 1. Summary: Posts are reminded that ConOffs should inform visa applicants of both the section of the law under which the visa was refused and the factual basis for the refusal, unless the information is classified or SBU. In all IV cases and in any NIV case involving a 212(a) refusal, posts must also provide the applicant (and any attorney of record) with a written refusal letter setting forth the ground of refusal. If there is a problem with a case and ConOff submits the matter to the Department for an advisory opinion, ConOff should so advise the applicant (and attorney) and, unless the matter is classified, should indicate why the case has been referred to the Department. End summary. 2. Attorneys often contact VO to report that their client's visa has been refused but they do not know the reason for the refusal. In many cases this occurs because the consular officer did not know the applicant was represented by an attorney and therefore explained the ground for the refusal only to the applicant, who then failed to understand or pass on the grounds to the attorney. However, in at least some cases, the problem is apparently due to a failure by the consular officer to follow established procedures for advising applicants of the grounds for a visa refusal. 3. Posts are reminded that section 212(b) generally requires that ConOffs inform the visa applicant of the section of the law under which a visa application was refused. In addition, per Ref A, it is the long-standing policy of the Department for ConOffs to also inform the applicant of the factual basis for the refusal, provided the information is not classified or SBU. 4. When a case has been refused 221(g), post should explain clearly to the applicant and attorney of record what documents or other evidence is needed, or what procedural step needs to be completed (e.g., case being submitted to the Department for advisory opinion on possible ineligibility under 212(a)(6)(C), or case requiring further "administrative processing" (for cases needing Washington namechecks)). If the case has been refused pending an advisory opinion (such as in GC rule of probability cases), posts should inform the alien and the attorney of record of the legal ground of refusal (INA 221(g)) and should specify the nature of the problem and the factual basis for believing that a problem exists, as required by Ref A. (9 FAM 41.121 PN3 predated Ref A and will be revised to reflect this requirement.) Per Refs A and B, post must provide written notice of the refusal in all IV cases and in all NIV cases involving a 212(a) refusal. 5. Providing the applicant with a specific explanation for the refusal gives the applicant a meaningful opportunity to rebut the finding and overcome the refusal. This procedure is not only a matter of fairness; it also helps ensure that our visa decisions are based on a correct understanding of the facts. On a practical level, informing the applicant and attorney of the ground for refusal in adequate detail should decrease the number of attorney inquiries received by both posts and the Department, and should ultimately help decrease workloads both in Washington and in the field. When post fails to adequately explain the basis for a visa refusal, the applicant, his/her attorney, or a member of Congress will frequently contact VO, which then must contact post. Post then has to pull the file, review the case, and explain the basis for refusal to VO, which in turn must then pass the information to the inquiring party. This extra work can be avoided if ConOff follows standard procedures from the outset and informs the applicant and attorney of record, in writing and in sufficient detail, of the reasons for the refusal. 6. The above procedures have not/not been superseded by the 1996 amendment to section 212(b). That amendment authorizes, but does not compel, ConOffs to withhold notification of the legal ground of refusal in cases involving 212(a)(2) and (a) (3) ineligibilities and provides for the possibility of a waiver of the notification requirement in cases not involving those two sections. Department is currently developing its policy regarding the implementation of the revised 212(b) provisions. However, as noted, the amendment does not/not prohibit ConOffs from stating the legal ground of refusal in 212(a)(2) and (a) (3) cases, and Department envisions that in nearly all such cases it will remain the policy of the Department to provide the legal ground and the (unclassified) factual basis for refusal. 7. Until regulations have been promulgated for revised INA 212(b), post should continue to follow existing regulations (Ref B) which require notification of the legal ground in all cases. If post encounters a rare case where it believes notification of the ground of refusal would jeopardize national interests (e.g., by compromising an ongoing secret law enforcement investigation), post should seek guidance from the Department (CA/VO/L/A or L/C, as appropriate). Madeleine Albright