United States: Whether an individual can apply for a US visa at a US embassy in a country where they do not have legal status; interview and recording of fingerprints requirements (August 2014-May 2015)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Visa Applicant Status

In correspondence with the Research Directorate, an official with the Bureau of Consular Affairs at the Embassy of the United States in Ottawa provided a link to information from the US Department of State's Bureau of Consular Affairs website regarding whether a person who applies for a US visa in a country other than the country of nationality or birth must have legal status in that country, and whether the US embassy accepts visa applications from people residing without legal status in said country (US 30 Apr. 2015). That information indicates that applicants for visitor visas may schedule their interviews at any US embassy or consulate, but are also advised to "be aware that it may be difficult to qualify for a visa outside of [their] place of permanent residence" (ibid. n.d.a).

Further information on the Bureau of Consular Affairs website indicates that for nonimmigrant visas, "[a]pplicants for visitor visas should generally apply at the nearest U.S. [e]mbassy or [c]onsulate in the country where they live" (ibid. Mar. 2014). Section "9 FAM 41.101: Notes" of the US Department of State's Foreign Affairs Manual Volume 9: Visas provides information regarding place of application for visa applicants; this section is attached to this Response (attachment 1).

The Bureau of Consular Affairs website states that

[t]here are specific requirements which must be met by applicants to qualify for a visitor visa under U.S. immigration law. The consular officer at the embassy or consulate will determine whether you qualify for the visa.

The required presumption under U.S. law is that every visitor visa applicant is an intending immigrant until they demonstrate otherwise. Therefore, applicants for visitor visas must overcome this presumption by demonstrating:

That the purpose of their trip is to enter the United States temporarily for business or pleasure;

That they plan to remain for a specific, limited period;

Evidence of funds to cover expenses in the United States;

That they have a residence outside the United States as well as other binding ties that will ensure their departure from the U.S. at the end of the visit. (US Mar. 2014)

2. Interview and Fingerprints

The US embassy official indicated that the US Foreign Affairs Manual Volume 9: Visas provides guidance to consular officers regarding interview requirements for visas (US 30 Apr. 2015). Section "9 FAM 41.102: Notes" of the manual states the following:

[t]he in-person interview is an important requirement of the visa application process. Under 22 CFR 41.102 [regarding the issuance of nonimmigrant visas under the Code of Federal Regulations], any alien applying for a nonimmigrant visa (NIV) must make a personal appearance and be interviewed by a consular officer unless the officer concludes that the alien:

Presents no national security concerns requiring an interview and that the alien qualifies for one of the interview waiver programs listed in [the manual]; or

Has had his or her interview waived in specific limited circumstances by the DAS [Deputy Assistant Secretary] for Visa Services or the COM [Chief of Mission]. (ibid. n.d.b, Sec. 41.102 N2)

This section of the manual, which deals with interview requirements and waiver programs, is attached to this Response (attachment 2).

Regarding the requirements for fingerprinting visa applicants, the Foreign Affairs Manual Volume 9: Visas states that

Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (Public Law 107-173) has required, since October 26, 2004, that all visas issued by the Department must be machine-readable and tamper-resistant and use biometric identifiers. (ibid., Sec. 41.102 N1.2)

The Bureau of Consular Affairs website indicates that "ink-free, digital fingerprint scans will be taken" as part of the visitor visa application process and that "they are usually taken during [the applicant's] interview, but this varies based on location" (ibid. n.d.a).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

United States (US). 30 April 2015. Embassy of the United States in Ottawa. Correspondence from an official to the Research Directorate.

_____. March 2014. Department of State, Bureau of Consular Affairs. "U.S. Visas." [Accessed 1 May 2015]

_____. N.d.a. Department of State, Bureau of Consular Affairs. "Visitor Visa." [Accessed 30 Apr. 2015]

_____. N.d.b. Department of State. "9 FAM 41.102: Notes." Foreign Affairs Manual Volume 9: Visas. [Accessed 1 May 2015]

Attachments

1. United States (US). N.d. Department of State. "9 FAM 41.101: Notes." Foreign Affairs Manual Volume 9: Visas. [Accessed 1 May 2015]

2. United States (US). N.d. Department of State. "9 FAM 41.102: Notes." Foreign Affairs Manual Volume 9: Visas. [Accessed 1 May 2015]