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9 FAM 603
PROTECTING AND RELEASING VISA RELATED INFORMATION
9 FAM 603.1
PROTECTING VISA INFORMATION
(CT:VISA32; 12302015) (Office of Origin: CA/VO/L/R)
9 FAM 603.11
RELATED STATUTORY AND REGULATORY AUTHORITIES
INA 222(f) (8 U.S.C. 1202(f)).
9 FAM 603.12
VISA FILES, RECORDS AND INFORMATION – OVERVIEW
a. Per INA 222(f), "the records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States," with very few exceptions.
(Previous location: 9 FAM 40.4 N2; CT:VISA1310 09182009)
b. Visa Record MakeUp:
For the purposes of INA 222(f), a "record" includes only information or documents pertaining to an individual visa applicant. It does not include material from general instructions, visa manuals, or other similar documents which make no reference to individual named applicants. Therefore, a "record" may consist of:
(1) Any document presented by an alien in connection with a visa application and retained by you at the conclusion of a visa interview;
(2) Any item, which may have a bearing on the alien's visa application, submitted to the post by the alien, by other agencies, or by the Department, such as an advisory opinion; and
(3) Any item generated by the post dealing with the alien's entitlement to visa status or ineligibility including, but not limited to:
(a) Correspondence with other posts about a visa; (b) Correspondence with the applicant;
(c) Investigative reports;
(d) Immigrant visa and nonimmigrant visa refusal worksheets; and
(e) The post's requests for advisory opinions from the Department.
c. See 9 FAM 601.6 for additional information on maintaining visa files, records and information at post.
9 FAM 603.13
PROTECTING VISA FILES, RECORDS, AND INFORMATION
a. Maintain Confidentiality of Visas Files, Records, and Information:
(1) INA 222(f) provides for the confidentiality of visa records. As used in this context the designation “confidential” does not relate to the security classification of a document but rather to its releasability. INA 222(f) generally requires that information contained in visa records: "shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States.” Therefore, the focus for determining the releasability (see 9
FAM 603.2) of a given document (telegrams, memoranda, reports, and any other documentation relating to an identifiable applicant) from a visa file depends on whether its release provides any assistance in the administration or enforcement of U.S. law (whether Federal, State, or local), or whether release of information would breach the confidentiality provision of INA 222(f). These restrictions also apply to direct quotations from information contained in visa records, to the visual inspection of such records, and to the disclosure of information from visa records.
(2) Posts must not release originals of an item in a visa record to a visa applicant nor allow the applicant to inspect the visa records except for civil documents. Furthermore, the INA 222(f) requirement of confidentiality prohibits divulging, even on an oral basis, the verbatim text of cables, memoranda, reports, and other documents bearing on an applicant's case.
(3) See 9 FAM 603.2 for guidance on authorized releases of visarelated information.
b. Classified or AdministrativelyControlled Visa Files: See 9 FAM 601.6
1(F) for additional information on classified or administrativelycontrolled visa files and their transfer to other posts.
c. "Law Enforcement Sensitive" (LES) National Crime Information Center (NCIC)III Information:
(1) Defining “Law Enforcement Sensitive” Information:
(a) The FBI designates "Law Enforcement Sensitive" (LES) as any unclassified information whose disclosure could jeopardize or
seriously harm law enforcement activities. All information received through the NCIC and III name checks or via a fingerprint check is considered "Law Enforcement Sensitive.”
(b) The FBI has established strict rules on handling, storing, and disclosing this information. The FBI periodically audits users with access to LES information to ensure policy and procedures are adhered to.
(2) Access to LES Information:
(a) Only employees with a need to know should have access to LES information. The needtoknow is granted to individuals at post whose jobs require them to handle criminal history records. This includes officers, Foreign Service nationals (FSNs), part time intermittent temporary (PIT), employees at the National Visa Center (NVC) and Kentucky Consular Center (KCC), and American family member (AFM) employees with immigrant visas (IV) and diversity visas (DV) processing responsibilities.
(b) "Law Enforcement Sensitive” (LES) information must not be left in areas where unauthorized persons may access it. Likewise, LES information should not be discussed with persons who do not have a need to know. As part of a visa record, a criminal history record is protected against unauthorized disclosure under INA 222(f). Procedures for maintaining the confidentiality of visa records may be found in 9 FAM 603.21(A), Related Statutory Provisions. Please see
12 FAM 540 for handling instructions on Sensitive but Unclassified
(3) Storage and Destruction of LES Information:
(a) "Law Enforcement Sensitive” information must be stored in a secure area. This requirement can be satisfied by filing the information in a locked cabinet, or by keeping it in an office area secured by cipher lock and accessible only to authorized employees.
(b) LES information must be destroyed by burning or shredding. LES information on diskettes or hard drives must be overwritten (i.e., unconditionally reformatted), degaussed, or physically destroyed.
(4) Dissemination of “Law Enforcement Sensitive” Information:
(a) A post may disseminate "Law Enforcement Sensitive" information (including details of an applicant's criminal history record) to the Department of Homeland Security (DHS) and other posts only when the information is necessary for the administration or enforcement of U.S. law. For example, criminal history records may be sent to the DHS with a waiver request, or disclosed to another post or DHS office inquiring about a CLASS lookout entry. Any further distribution of LES information must be cleared with the Regional Security Officer (RSO).
(b) If a post disseminates “Law Enforcement Sensitive” information other than as authorized by para (a) above, such dissemination must be specifically logged in the visa record in the CCD to which the “Law Enforcement Sensitive” information is attached.
The consular officer in charge of the immigrant visas (IV) and/or diversity visas (DV) section must be responsible for the proper handling of all "Law Enforcement Sensitive” (LES) information. The consular officer in charge must brief U.S. and Foreign Service national (FSN) subordinates having access to LES information. The National Visa Center (NVC) will keep a roster of immigrant visas (IV) chiefs to establish accountability for FBI auditors.
Posts should direct questions on the protection, storage, or dissemination of LES information to the Office of Field Operations (CA/VO/F) and to DS/OA/SYS.
d. Protecting Other Agency Information:
(1) Posts shall not share protected information with a third party unless with proper written authorization from the originating agency, as spelled out in prevailing Memoranda of Understanding (MOU) with other agencies.
(2) The Federal Information Security Management Act (FISMA), and Title III of the Egovernment Act of 2002, requires Federal agencies adhere to certain information security standards for all information systems under their control. 44 USC S 3541 (3) authorizes the development and maintenance of minimum controls required to protect federal information and information systems. Therefore, posts shall protect other agencies' information by requiring individual officer's acceptance of appropriate access agreements prior to being granted access. Information sharing, including national intelligence and related information, must be
conducted in strict compliance with applicable laws, MOU terms, and statutes to ensure presence of all necessary infrastructure required to protect information from unauthorized disclosure. In compliance with 5
FAM 469.1 a & b, all Department workforce members must adhere to established rules of behavior governing the handling of protected information required for optimum performance of official duties.
(3) The guidance in 603.12 (above) instructs you to treat visa records as "confidential," for purposes of determining the individual record's "releasability" to a third party. Once the Department obtains a record from another agency that pertains to the alien's entitlement to visa status or ineligibility, that record is subject to INA 222(f) protections, if not otherwise classified or administratively controlled (per paragraph b,
above). Therefore, you must protect other agency information pertaining to visa applications as you would the Department's own records.