Introduction
On April 11, 2019, the U.S. Department of State (DOS) published new regulations in the Federal Register dealing with refusal procedures for visas barred under section 243(d) of the Immigration and Nationality Act (INA). The new regulations took effect on April 22, 2019.
Section 243(d) of the Immigration and Nationality Act (INA) allows the Secretary of State to impose visa sanctions against countries whose governments deny or unreasonably delay accepting the return of nationals and residents ordered removed to those countries. Under prior regulations, consular officers adjudicating visa applications abroad were required to grant or deny every visa application, including those which could not be approved due to section 243(d) sanctions. The DOS explains that “[t]his [new] rule makes clear that discontinuation of visa granting is an acceptable alternative to issuing or refusing a properly executed visa application…” The new regulations “set[] out procedures for discontinuation of visa issuance when INA 243(d) applies.”
In this article, we will examine the new regulations and associated DOS policies. Our article will be based on the Federal Register (FR) notice published at 84 FR 16610 (Apr. 22, 2019) [PDF version].
Regulatory Changes
The DOS modified 22 C.F.R. 41.121(a), which deals with the refusal of nonimmigrant visas. Under previous regulations, consular officers were required to either ether issue a visa or refuse a visa upon receiving a properly completed and executed visa application. Under those rules, all visa applications that could not be approved due to section 243(d) still had to be granted or refused. The regulation has been modified to read that consular officers must discontinue granting visas that cannot be approved due to an outstanding order under section 243(d). As we will see, visas covered by both section 243(d) and a separate refusal ground will be refused under new policies, but applications only subject to 243(d) will be discontinued instead. The DOS made a similar change to its regulations at 22 C.F.R. 42.81(a).
A new regulatory provision at 22 C.F.R. 41.123 provides procedures for handling visa applications covered by section 243(d) under the new rules.
22 C.F.R. 41.123(a) provides that consular officers “shall discontinue granting nonimmigrant visas for categories of nonimmigrant visas specified in the [section 243(d)] order…” 22 C.F.R. 41.123(b)(1) provides that once a section 243(d) order takes effect, “no visas falling within the scope of the order, as described by the order, may be issued in the referenced country to an applicant who falls within the scope of the order, except as otherwise expressly provided in the order or in related [DOS] instructions.” If the consular officer determines that the applicant is not eligible for the visa for reasons other than the section 243(d) order, however, the consular officer must refuse the visa. For example, if the applicant who is covered by a section 243(d) order is ineligible for a visa under section 212(a) or 221(g) of the INA, or another applicable provision, the application will be refused. However, if the applicant is not ineligible to receive a visa but for the section 243(d) order, the consular officer “must process the application by discontinuing granting, regardless of when the application was filed…” The DOS will not refund the application processing fee and there is no waiver of the discontinuation of visa issuance until the section 243(d) sanctions are lifted.
22 C.F.R. 41.123(b)(2) covers situations where an applicant who appears to potentially be subject to section 243(d) sanctions applies at a consular post outside of the sanctioned country. In such cases where the DOS believes that the applicant is applying for a visa at a consular post outside of the sanctioned country for the purpose of evading section 243(d), “the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply…” After the transfer, “the adjudication will be subject to the discontinuation of issuance under the sanctions.” The DOS offers the example of a case where the applicant “provides no credible explanation for applying outside the country” as one that may lead a consular officer to suspect that the applicant is attempting to evade visa sanctions.
22 C.F.R. 41.123(c) provides procedures for when section 243(d) sanctions against a country are terminated. After the termination of section 243(d) sanctions, normal visa processing may resume. The regulation provides that “no new application processing fee is required in cases where issuance has been discontinued pursuant to an INA 243(d) order, and consular officers in the affected post must adjudicate the visa consistent with regulations and [DOS] guidance.” While new visa application processing fees will not be required for applicants whose applications were discontinued under the prior section 243(d) order, “[c]onsular officers may require applicants to update the visa application forms, must conduct any necessary adjudicatory steps, and may re-interview the applicant to determine eligibility.”
22 C.F.R. 42.84, which contain similar modifications to the 22 C.F.R. 41.123(c), adds that “[i]n the case of diversity immigrant selectees applying under INA 203(c), if the discontinuance of granting has not been lifted by the end of the fiscal year, the applicant will not be eligible for a diversity visa for that fiscal year, regardless of the status of the diversity immigrant visa application at the time 243(d) sanctions were imposed.”
Conclusion
The new regulations will modify how the DOS handles visa applications covered by section 243(d) orders. Section 243(d) still covers only a relatively small number of countries, but its use may be expanded in the future. Individuals who may be affected by section 243(d) should consult with an experienced immigration attorney for case-specific guidance. We will update the site with new information about section 243(d) orders if and when it becomes available.
To learn more about consular processing generally, please see our website’s full section on the subject [see category].
