[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: 22CFR42.81]

[Page 241-242]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents
 
     Subpart I--Refusal, Revocation, and Termination of Registration
 
Sec. 42.81  Procedure in refusing individual visas.


    (a) Issuance or refusal mandatory. When a visa application has been 
properly completed and executed before a consular officer in accordance 
with the provisions of INA and the implementing regulations, the 
consular officer must either issue or refuse the visa under INA 212(a) 
or INA 221(g) or other applicable law. Every refusal must be in 
conformance with the provisions of 22 CFR 40.6.

[[Page 242]]

    (b) Refusal procedure. A consular officer may not refuse an 
immigrant visa until Form OF-230, Application for Immigrant Visa and 
Alien Registration, has been executed by the applicant. When an 
immigrant visa is refused, an appropriate record shall be made in 
duplicate on a form prescribed by the Department. The form shall be 
signed and dated by the consular officer. The consular officer shall 
inform the applicant of the provision of law or implementing regulation 
on which the refusal is based and of any statutory provisions under 
which administrative relief is available. Each document related to the 
refusal shall then be attached to Form OF-230 for retention in the 
refusal files. Any documents not related to the refusal shall be 
returned to the applicant. If the grounds of ineligibility may be 
overcome by the presentation of additional evidence and the applicant 
indicates an intention to submit such evidence, all documents may, with 
the consent of the alien, be retained in the consular files for a period 
not to exceed one year. If the refusal has not been overcome within one 
year, any documents not relating to the refusal shall be removed from 
the file and returned to the alien.
    (c) Review of refusal at consular office. If the grounds of 
ineligibility upon which the visa was refused cannot be overcome by the 
presentation of additional evidence, the principal consular officer at a 
post, or a specifically designated alternate, shall review the case 
without delay, record the review decision, and sign and date the 
prescribed form. If the grounds of ineligibility may be overcome by the 
presentation of additional evidence and the applicant indicates the 
intention to submit such evidence, a review of the refusal may be 
deferred. 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 
final action on the case.
    (d) Review of refusal by Department. The Department may request a 
consular officer in an individual case or in specified classes of cases 
to submit a report if an immigrant 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, are binding upon consular officers.
    (e) Reconsideration of refusal. If a visa is refused, and the 
applicant within one year from the date of refusal adduces further 
evidence tending to overcome the ground of ineligibility on which the 
refusal was based, the case shall be reconsidered. In such circumstance, 
an additional application fee shall not be required.

[52 FR 42613, Nov. 5, 1987; 53 FR 9112, Mar. 21, 1988, as amended at 66 
FR 10364, Feb. 15, 2001]