OCTOBER 1, 1969.

CONGRESSIONAL LIAISON OFFICE,
Department of State,

Washington, D.C.

GENTLEMEN: What is the statutory and administrative authority for denying an application for a U.S. visa?

What are the outer limits of our discretion beyond such authority to deny a visa?

Can we deny a visa for "reasons of foreign policy"? If so, what would fall in this category? If not, can it be added to the list of excludables administratively or would a statutory change be required?

Can restrictions be exercised within a time frame? For example, could we deny a certain category of visas for a period of a week, or a month, or any other period? If you think you have no authority to deny a visa in reciprocity for the denial of a visa to an American citizen for reasons of race, etc., what change would you recommend to accomplish such an objective, statutorily or administratively? I shall be looking forward to your response.

Sincerely,

Hon. CHARLES C. DIGGS, Jr.,

CHARLES C. DIGGS, Jr., Chairman, Subcommittee on Africa, House Foreign Affairs Committee.

OCTOBER 15, 1969.

Chairman, Subcommittee on Africa, House Foreign Affairs Committee, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: I have received your letter of October 1, in which you ask five specific questions with respect to the authority for denying an application for a United States visa.

In answer to your first question, the authority for refusal of visas is contained in Sections 212(a), 221(g), and 243(g) of the Immigration and Nationality Act. For your ready information, I enclose an information sheet which includes sections of the law relating to classes of aliens ineligible to receive visas. In addition, in issuing and refusing nonimmigrant visas, the consular officer is governed by the requirements applied by the statute to each nonimmigrant category described in Section 101(a)(15) of the Act.

Secondly, a United States visa is refused only upon a ground specifically set out in the law or regulations issued thereunder. Responsibility for the issuance or denial of a visa rests with the consular officer, although he is subject to the guidance of the Department of State in resolving questions concerning interpretations of the law.

With regard to question number three, a visa may not be denied for "reasons of foreign policy". However, if the consular officer has reason to believe, that the alien intends to engage in activities which "would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States", he would be required to refuse a visa under Section 212(a) (27) of the Act. Any change in the present classifications of aliens ineligible to receive visas would require a statutory amendment.

There is no authority to suspend issuance of a particular type of visa for a period of time. However, a consular officer must give consideration at any time to evidence submitted which indicates that the ground for prior refusal of a visa no longer exists. Also, the Attorney General may, pursuant to a favorable recommendation by the Secretary of State or a consular officer, authorize the temporary admission of an ineligible alien under such conditions as he may prescribe regarding the period within which the alien may be admitted and for which he may stay in the United States. However, the Attorney General may not authorize the temporary admission of an alien ineligible under Section 212(a) (27) or (29).

With regard to your last question, there is no statutory authority to refuse visas on a basis of reciprocity. Authorization for such a ground of refusal would require a statutory amendment, presumably by the inclusion of an additional category in Section 221(g) of the Immigration and Nationality Act. However, it may be of interest to you to note that, pursuant to the provisions of Section 212(f), the President may, whenever he finds that the entry of any aliens or of any class of aliens into the United States, would be detrimental to the interests of the United States, by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmi

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grants, or impose on the entry of aliens any restrictions which he may deem to be appropriate.

I hope that the foregoing information will be helpful to you. Please continue to call on us whenever you believe that we can be of assistance.

Sincerely yours,

H. G. TORBERT, Jr.,

Acting Assistant Secretary for Congressional Relations.

Enclosure: Classes of Ineligible Aliens.

DEPARTMENT OF STATE

INFORMATION SHEET-CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS

Section 221 (g) of the Immigration and Nationality Act reads as follows: "No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provisions of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a) (7), or section 212(a)(15), if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15)(B) or (F), if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a), or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States."

Section 212(e) of the Immigration and Nationality Act reads as follows:

"No person admitted under section 101(a) (15) (J) [Exchange Visitor] or acquiring such status after admission shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101 (a) (15) (H) until it is established that such person has resided and been physically present in the country of his nationality or his last residence, or in another foreign country for an aggregate of at least two years following departure from the United States: Provided, That such residence in another foreign country shall be considered to have satisfied the requirements of this subsection if the Secretary of State determines that it has served the purpose and intent of the Mutual Education and Cultural Exchange Act of 1961: Provided further, That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest: And provided further, That the provisions of this paragraph shall apply also to those persons who acquired exchange visitor status under the United States Information and Educational Exchange Act of 1948, as amended."

Section 212(a) of the Immigration and Nationality Act reads as follows: "Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

"(1) Aliens who are mentally retarded;

"(2) Aliens who are insane;

"(3) Aliens who have had one or more attacks of insanity;

"(4) Aliens afflicted with psychopathic personality, or sexual deviation, or a mental defect;

"(5) Aliens who are narcotic drug addicts or chronic alcoholics;

"(6) Aliens who are afflicted with any dangerous contagious disease;

"(7) Aliens not comprehended within any of the foregoing classes who are certified by the examining surgeon as having a physical defect, disease, or disability when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affimatively establishes that he will not have to earn a living;

"(8) Aliens who are paupers, professional beggars, or vagrants;

"(9) Aliens who have been convicted of a crime involving moral turpitude (other than a purely political offense), or aliens who admit having committed such a crime, or aliens who admit committing acts which constitute the essential elements of such a crime; except that aliens who have committed only one such crime while under the age of eighteen years may be granted a visa and admitted if the crime was committed more than five years prior to the date of the application for a visa or other documentation, and more than five years prior to date of application for admission to the United States, unless the crime resulted in confinement in a prison or correctional institution, in which case such alien must have been released from such confinement more than five years prior to the date of the application for a visa or other documentation, and for admission, to the United States. Any alien who would be excludable because of the conviction of a misdemeanor classifiable as a petty offense under the provisions of section 1(3) of title 18, United States Code, by reason of the punishment actually imposed, or who would be excludable as one who admits the commission of an offense that is classifiable as a misdemeanor under the provisions of section 1(2) of title 18, United States Code, by reason of the punishment which might have been imposed upon him, may be granted a visa and admitted to the United States if otherwise admissible: Provided, That the alein has committed only one such offense, or admits the commission of acts which constitute the essential elements of only one such offense.

"(10) Aliens who have been convicted of two or more offenses (other than purely political offenses), regardless of whether the conviction was a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were five years or more;

"(11) Aliens who are polygamists or who practice polygamy or advocate the practice of polygamy;

"(12) Aliens who are prostitutes or who have engaged in prostitution, or aliens coming to the United States solely, principally, or incidentally to engage in prostitution; aliens who directly or indirectly procure or attempt to procure, or who have procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution or for any other immoral purpose; and aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution or aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution; "(13) Aliens coming to the United States to engage in any immoral sexual act; "(14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. The exclusion of aliens under this paragraph shall apply to special immigrants defined in section_101(a) (27) (A) (other than the parents, spouses, or children of United States citizens or of aliens lawfully admitted to the United States for permanent residence), to preference immigrant aliens described in section 203 (a) (3) and (6), and to nonpreference immigrant aliens described in section 203 (a) (8); "(15) Aliens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges;

"(16) Aliens who have been excluded from admission and deported and who again seek admission within one year from the date of such deportation, unless prior to their reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their reapplying for admission;

"(17) Aliens who have been arrested and deported, or who have fallen into distress and have been removed pursuant to this or any prior act, or who have been removed at Government expense in lieu of deportation pursuant to section 242 (b), unless prior to their embarkation or reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their applying or reapplying for admission; "(18) Aliens who are stowaways;

“(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact;

"(20) Except as otherwise specifically provided in this Act, any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality, if such document is required under the regulations issued by the Attorney General pursuant to section 211(e);

"(21) Except as otherwise specifically provided in this Act, any quota immigrant at the time of application for admission whose visa has been issued without compliance with the provisions of section 203;

"(22) Aliens who are ineligible to citizenship, except aliens seeking to enter as nonimmigrants; or persons who have departed from or who have remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period declared by the President to be a national emergency, except aliens who were at the time of such departure nonimmigrant aliens and who seek to reenter the United States as nonimmigrants;

"(23) Any alien who has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana, or who has been convicted of a violation of, or a conspiracy to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any salt derivative or preparation of opium or coca leaves, or isonipecaine or any addiction-forming or addiction-sustaining opiate; or any alien who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs;

"(24) Aliens (other than those aliens who are native-born citizens of countries enumerated in section 101(a)(27)(C) and aliens described in section 101(a)(27) (B)) who seek admission from foreign contiguous territory or adjacent islands, having arrived there on a vessel or aircraft of a nonsignatory line, or if signatory, a noncomplying transportation line under section 238(a) and who have not resided for at least two years subsequent to such arrival in such territory or adjacent islands;

"(25) Aliens (other than aliens who have been lawfully admitted for permanent residence and who are returning from a temporary visit abroad) over sixteen years of age, physically capable of reading, who cannot read and understand some language or dialect;

"(26) Any nonimmigrant who is not in possession of (A) a passport valid for a minimum period of six months from the date of the expiration of the initial period of his admission or contemplated initial period of stay authorizing him to return to the country from which he came or to proceed to and enter some other country during such period; and (B) at the time of application for admission a valid nonimmigrant visa or border crossing identification card;

"(27) Aliens who the consular officer or the Attorney General knows or has reason to believe seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States;

"(28) Aliens who are, or at any time have been, members of any of the following classes:

(A) Aliens who are anarchists;

(B) Aliens who advocate or teach, or who are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;

(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States,

(iii) the Communist Political Association, (iv) the Communist or any other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state, (v) any section, subsidiary, branch, affiliate, or subdivision of any such association or party, or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt: Provided, That nothing in this paragraph, or in any other provision of this Act, shall be construed as declaring that the Communist Party does not advocate the overthrow of the Government of the United States by force, violence, or other unconstitutional means; (D) Aliens hot within any other provisions of this paragraph who advocate the economie, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship, or who are members of or affiliated with any organization that advocates the economic, international, and governmental doctrines of world communi m or the establishment in the United States of a totalitarian dictatorship, either through its own utterances or through any written or printed publications issued or published by or with the permission or consent of or under the authority of such organization or paid for by the funds of, or funds furnished by, such organization;

(E) Aliens not within any of the other provisions of this paragraph, who are members of or affiliated with any organization during the time it is registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950, unless such aliens establish that they did not have knowledge or reason to believe at the time they became members of or affiliated with such an organization (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered have such knowledge or any reason to believe) that such organization was a Communist organization;

(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law; or (ii) the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage; (G) Aliens who write or publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed, or who knowingly have in their possession for the purpose of circulation, publication, distribution, or display, any written or printed matter, advocating or teaching opposition to all organized government, or advocating or teaching (i) the overthrow by force, violence, or other unconstitutional means of the Government of the United States or of all forms of law; or (ii) the duty, necessity or propriety of unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of of any other organized government, because of his or their official character; or (iii) the unlawful damage, injury, or destruction of property; or (iv) sabotage; or (v) the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship;

(H) Aliens who are members of or affiliated with any organization that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in paragraph (G);

(I) Any alien who is within any of the classes described in subparagraphs (B), (C), (D), (E), (F), (G), and (H) of this paragraph because of membership in or affiliation with a party or organization or a section, subsidiary, branch, affiliate, or subdivision thereof, may, if not otherwise ineligible, be issued a visa if such alien establishes to the satisfaction of the consular officer when applying for a visa and the consular officer finds that (i) such membership or affiliation is or was involuntary, or is or was solely when under sixteen years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and when necessary for such purposes, or