DOS Can No Longer Refuse Visa Without Interview! – June 2001

As many readers of the MurthyBulletin are aware, many nonimmigrant visa (NIV) applicants are not interviewed, but rather apply through a dropbox procedure, or via a travel agent or courier service. Each consulate sets its own guidelines for the various application methods. As many of you are aware, the consulates are considered a part of the U.S. Department of State (DOS).

In a cable message issued June 12, 2001, U.S. Secretary of State Colin Powell stated that the above methods to apply for NIVs may help to streamline workflow for the consulates and provide convenient service to visa applicants. If it is clear that the applicant is eligible, the visa can be issued without the need for an interview. However, if it appears that the person may not be eligible, it is necessary to call the applicant in for an interview, and determine his or her eligibility based upon the results of that interview. Therefore, consulates will no longer be able to decide to deny the visa based on a dropbox application, and simply reply with a refusal letter. According to the cable, this is not a new policy. Rather this procedure is the current rule that must be followed in accordance with the law, the regulations, and the Foreign Affairs Manual (FAM), which is a U.S. Department of State (DOS) guidebook.

We at The Law Office of Sheela Murthy P.C. have noted that the FAM states that visa applicants must have every reasonable opportunity to establish their eligibility. Yet, time and time again, consulates have ignored this provision, often turning people away without an interview and without even adequately communicating the grounds for visa refusal. While the consulates' workload considerations may have required this procedure, DOS will no longer permit the consulates to refuse a visa applicant without affording an opportunity for an interview with a consular officer.

No Substitute for an Interview

The June 12, 2001 DOS cable instructs that if the refusal would be on a ground other than 221(g) (insufficient documentation provided), then there must be an interview. The most common ground of visa denial is 214(b) or the issue of nonimmigrant intent, i.e. whether the person has the intent to come to the U.S. on a temporary basis and return to his or her country. Applicants for visas such as B1 (business visitor), B2 (tourist), and F1 (students) are routinely refused on this ground without an interview and often without review of the documents presented.

Now, in the June 2001 cable, the Secretary of State requires that determinations as to an applicant's nonimmigrant intent be made by means of an interview. He states that for determining an applicant's credibility, "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." Providing a worthy example for government officials everywhere to follow, Secretary Powell declares, "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."

Informing the Applicant of the Grounds for Refusal

When denying a visa, the consulate must, by law, inform the applicant of the section of the law which is the basis for the denial, for example 214(b). Secretary Powell says that it is also important to inform the applicant of the factual basis for the denial. That way, the applicant has the opportunity to provide additional information or explanation that may possibly overcome the ground for denial. If the Consular Officer has misunderstood the facts, then it is also possible that the error can be corrected at the interview.

Therefore, the visa applicant should be told in person at the interview of the grounds for refusal, rather than being sent the information in writing. (Again, as mentioned above, if the visa is being refused based on 221(g), then a letter will suffice.) Secretary Powell proves a government official can be not only fair, but also practical, when he correctly points out that a clear explanation of the refusal can actually save time in the long run. If a person does not understand the basis for the denial, then the visa applicant, family members, and others may attempt to contact the consulate for further explanation. Many of those inquiries go through the Visa Office (VO) at DOS headquarters, and then VO has to ask the consulate why the visa was refused, and the consulate must then provide a report to the VO. All this follow-up activity takes much more time and effort than simply providing a proper explanation to the applicant in the first place.

We at The Law Office of Sheela Murthy applaud DOS' stand on this issue via the June 2001 cable. In the final analysis, though, the issue is whether the consulates have the time and resources to comply with the law immediately, or whether they would need additional resources to implement this requirement, which has, in fact, been the law all along.