[Code of Federal Regulations]
[Title 22, Volume 1]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR41.121]

[Page 217]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents
 
                   Subpart L--Refusals and Revocations
 
Sec. 41.121  Refusal of individual visas.


    (a) Grounds for refusal. Nonimmigrant visa refusals must be based on 
legal grounds, such as one or more provisions of INA 212(a), INA 212(e), 
INA 214(b), (f) or (l) (as added by Section 625 of Pub. L. 104-208), INA 
221(g), or INA 222(g) or other applicable law. Certain classes of 
nonimmigrant aliens are exempted from specific provisions of INA 212(a) 
under INA 102 and, upon a basis of reciprocity, under INA 212(d)(8). 
When a visa application has been properly completed and executed in 
accordance with the provisions of INA and the implementing regulations, 
the consular officer must either issue or refuse the visa.
    (b) Refusal procedure. (1) When a consular officer knows or has 
reason to believe a visa applicant is ineligible and refuses the 
issuance of a visa, he or she must inform the alien of the ground(s) of 
ineligibility (unless disclosure is barred under INA 212(b)(2) or (3)) 
and whether there is, in law or regulations, a mechanism (such as a 
waiver) to overcome the refusal. The officer shall note the reason for 
the refusal on the application. Upon refusing the nonimmigrant visa, the 
consular officer shall retain the original of each document upon which 
the refusal was based, as well as each document indicating a possible 
ground of ineligibility, and should return all other supporting 
documents supplied by the applicant.
    (2) If an alien, who has not yet filed a visa application, seeks 
advice from a consular officer, who knows or has reason to believe that 
the alien is ineligible to receive a visa on grounds which cannot be 
overcome by the presentation of additional evidence, the officer shall 
so inform the alien. The consular officer shall inform the applicant of 
the provision of law or regulations upon which a refusal of a visa, if 
applied for, would be based (subject to the exception in paragraph 
(b)(1) of this section). If practicable, the consular officer should 
request the alien to execute a nonimmigrant visa application in order to 
make a formal refusal. If the individual fails to execute a visa 
application in these circumstances, the consular officer shall treat the 
matter as if a visa had been refused and create a record of the presumed 
ineligibilty which shall be filed in the consular office.
    (c) Review of refusal at consular office. If the ground(s) of 
ineligibility upon which the visa was refused cannot be overcome by the 
presentation of additional evidence, the principal consular officer, or 
a specifically designated alternate, shall review the case without 
delay, record the review decision, and sign and date the prescribed 
form. If the ground(s) of ineligibility may be overcome by the 
presentation of additional evidence, and the applicant has indicated the 
intention to submit such evidence, a review of the refusal may be 
deferred for not more than 120 days. If the principal consular officer 
or alternate does not concur in the refusal, that officer shall either
    (1) Refer the case to the Department for an advisory opinion, or
    (2) Assume responsibility for the case by reversing the refusal.
    (d) Review of refusal by Department. The Department may request a 
consular officer in a specific case or in specified classes of cases to 
submit a report if a visa has been refused. The Department will review 
each report and may furnish an advisory opinion to the consular officer 
for assistance in considering the case further. If the officer believes 
that action contrary to an advisory opinion should be taken, the case 
shall be resubmitted to the Department with an explanation of the 
proposed action. Rulings of the Department concerning an interpretation 
of law, as distinguished from an application of the law to the facts, 
shall be binding upon consular officers.

[52 FR 42597, Nov. 5, 1987, as amended at 56 FR 30428, July 2, 1991; 63 
FR 671, Jan. 7, 1998; 66 FR 10364, Feb. 15, 2001]

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