Discontinuance of Visa Issuance Under INA 243(d)

April 22, 2019

 

Countries that refuse or unreasonably delay accepting the return of their nationals who have been ordered removed from the United States are labeled "recalcitrant." Section 243(d) of the Immigration and Nationality Act (INA 243(d)) provides for "discontinuance" of visa issuance as a penalty for countries that refuse to take back their "citizens, subjects, nationals, and residents" who have been ordered deported from the United States. The scope of any visa discontinuation order is usually tailored to the individual country.

Partial discontinuation of visa issuance under INA 243(d) is currently in effect on five countries:

  • Burma. Effective July 9, 2018. "As of July 9, 2018, the U.S. Embassy in Rangoon, Burma has discontinued the issuance of all B1 and B2 nonimmigrant visas for current officials at the Director General level and above from the Burmese Ministries of Labor, Immigration, and Population (MOLIP) and Home Affairs (MOHA), and their immediate family members, with limited exceptions."
  • Laos. Effective July 9, 2018. "As of July 9, 2018, the U.S. Embassy in Vientiane, Laos, has discontinued the issuance of all B1, B2, and B1/B2 nonimmigrant visas for current officials at the Director General level and above from the Lao Ministry of Public Security (MPS) as well as their immediate families; and all A3 and G5 nonimmigrant visas to individuals employed by Lao government officials, with limited exceptions."
  • Cambodia. Effective September 13, 2017. The U.S. embassy in Cambodia has discontinued the issuance of B visas for visitors for business or pleasure (B-1 and B-2) for Cambodian ministry of foreign affairs employees with the rank of director general and above and their families only. B visas for other individuals are not affected in Cambodia
  • Eritrea. Effective September 13, 2017. The U.S. embassy in Eritrea has discontinued the issuance of all B visas, both B-1 and B-2, for all applicants.
  • Sierra Leone. Effective September 13, 2017. The United States embassy in Sierra Leone, has discontinued the issuance of B visas to Sierra Leone ministry of foreign affairs officials and immigration officials. B visas for other individuals are not affected in Sierra Leone.

These suspensions will remain in effect until the DHS Secretary notifies the DOS Secretary that the respective countries begin accepting their repatriated citizens to the satisfaction of the United States. The Department of State may also change the covered visa categories at any time.

The INA 243(d) sanctions on Cambodia, Eritrea, and Sierra Leone were announced on September 12, 2017 in a Department of State press briefing, and were confirmed in a September 13, 2017 DHS press release. Guinea was also sanctioned under INA 243(d) at that time, and posts in Guinea "discontinued issuing B, F, J, and M visas to Guinean government officials and their immediate family members." However, the restrictions on Guinea were subsequently lifted effective August 27, 2018, and normal visa processing resumed at the U.S. Embassy in Conakry for all visa categories. On July 10, 2018, DHS announced the implementation of INA 243(d) sanctions on two additional countries, Burma and Laos, as described above.

Background on INA 243(d)

Text of INA 243(d)/8 USC 1253(d)

(d) Discontinuing Granting Visas to Nationals of Country Denying or Delaying Accepting Alien. On being notified by the [Secretary of Homeland Security] that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the [Secretary of Homeland Security] asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the [Secretary of Homeland Security] notifies the Secretary that the country has accepted the alien.

On April 22, 2019, DOS published a final rule on INA 243(d) visa issuance discontinuation, effective that same date. Prior to that, consular officers had been implementing INA 243(d) on sanctioned countries through policy guidance alone. 84 FR 16610 (April 22, 2019) revised 22 CFR 41.121(a) to reference discontinuation of nonimmigrant visas under INA 243(d), and added 22 CFR 41.123 to give consular officers direction on scope and procedural aspects. Parallel provisions modify and add sections to 8 CFR Part 42 regarding discontinuation of immigrant visas, at 22 CFR 42.81 and 22 CFR 42.84. According to the preamble of the final rule, these revisions to the regulations clarify under INA 243(d), "the consular officer may discontinue granting (i.e., suspend issuance of) a visa... in the manner described in the two new sections."

The new section on discontinuance of nonimmigrant visa issuance provides:

22 CFR 41.123 Discontinuance of Granting Nonimmigrant Visa Pursuant to INA 243(d).

(a) Grounds for discontinuance of granting a visa. Consular officers in a country subject to an order by the Secretary under INA 243(d) shall discontinue granting nonimmigrant visas for categories of nonimmigrant visas specified in the order of the Secretary (or his or her designee), and pursuant to procedures dictated by the Department.

(b) Discontinuance procedure-

(1) Applications refused or discontinued only. Starting on the day the Secretary's (or designee's) order to discontinue granting visas takes effect (effective date), 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 related Department instructions. Beginning on the effective date, a consular officer must refuse the visa if the individual is not eligible for the visa under INA 212(a), INA 221(g), or other applicable law, but if the applicant is otherwise eligible, must process the application by discontinuing granting, regardless of when the application was filed, if the applicant falls within the scope of the order and no exception applies. The application processing fee will not be refunded. The requirement to discontinue issuance may not be waived, and continues until the sanction is terminated as described below.

(2) Geographic applicability. Visa sanctions under INA 243(d) only apply to visa issuance in the country that is sanctioned. If a consular officer has a reason to believe that a visa applicant potentially subject to INA 243(d) sanctions is applying at a post outside the sanctioned country to evade visa sanctions under INA 243(d) (e.g., the applicant provides no credible explanation for applying outside the country), the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply, review any other applicable Department instructions, and proceed accordingly. When cases are transferred to a consular district where INA 243(d) sanctions apply, the adjudication will be subject to the discontinuation of issuance under the sanctions.

(c) Termination of sanction. The Department shall notify consular officers in an affected country when the sanction under INA 243(d) has been lifted. After notification, normal consular operations may resume consistent with these regulations and guidance from the Department. Once the sanction under INA 243(d) is lifted, 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 Department guidance. Consular 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.

The DOS Foreign Affairs Manual (FAM) provides a good description about the general scope and mechanics of INA 243(d) visa issuance discontinuation orders, at 9 FAM 601.12. The FAM entry clarifies that discontinuing visa issuance under INA 243(d) is different from an "entry ban" under INA 212(f), or a visa denial.

  • An INA 243(d) visa discontinuation order is principally geographic in nature; it directs consular officers in a specific foreign country to discontinue granting visas to "citizens, subjects, nationals, and residents of that country."
  • It does not necessarily prohibit issuance of visas to individuals who are not citizens, subjects, nationals, and residents of that country, such as visitors who wish to apply for a visa as third-country nationals.
  • A citizen, national, or resident of a subject country might be able to obtain a visa at a U.S. consular post in a third country, but only if the applicant has a credible explanation for applying outside the home country, and is not applying in the third country "to evade visa sanctions under INA 243(d)." 22 CFR 41.123 provides:
  • (2) Geographic applicability. Visa sanctions under INA 243(d) only apply to visa issuance in the country that is sanctioned. If a consular officer has a reason to believe that a visa applicant potentially subject to INA 243(d) sanctions is applying at a post outside the sanctioned country to evade visa sanctions under INA 243(d) (e.g., the applicant provides no credible explanation for applying outside the country), the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply, review any other applicable Department instructions, and proceed accordingly. When cases are transferred to a consular district where INA 243(d) sanctions apply, the adjudication will be subject to the discontinuation of issuance under the sanctions.

Background on the use of INA 243(d)

INA 243(d) has been invoked before, but in those instances it was used only after diplomatic efforts have failed, and was narrowly applied to temporarily discontinue visa issuance for select individuals such as diplomats.

In April 2011, the Department of State (DOS) and the Department of Homeland Security (DHS) executed a "Memorandum of Understanding Concerning Repatriation," on measures the DOS Bureau of Consular Affairs and the DHS Immigration and Customs Enforcement (ICE) could take to address a number of recalcitrant countries. These measures included:

  • Establishing a target average travel document issuance time of 30 days
  • Issuing a demarche or series of demarches at increasingly higher levels
    • "A demarche is a formal diplomatic representation of one government’s official position, views, or wishes on a given subject to an appropriate official in another government or international organization. Demarches generally seek to persuade, inform, or gather information from a foreign government. Governments may also use a demarche to protest or object to actions by a foreign government." 5 FAH-1 H-613.
     
  • Holding joint meetings with the recalcitrant country's ambassador to the United States, the DOS Assistant Secretary for Consular Affairs, and the Director of ICE;
  • Considering discontinuation of visa issuance under INA 243(d);
  • Conducting interagency meetings to discuss withholding U.S. aid or other funding

More recently, the House Committee on Oversight and Government Reform's July 14, 2016 hearing, Recalcitrant Countries: Denying Visas to Countries That Refuse to Take Back Their Deported Nationals, showed a building Congressional concern about country recalcitrance.

Hearing Sources