In today’s blog post, we share some interesting Question and Answer responses recently provided by the Department of State’s Office of the Assistant Legal Adviser for Consular Affairs (L/CA), in a meeting with the American Immigration Lawyers Association (AILA).
The responses below provide some important insight into current immigration policies and procedures taking place amid the ongoing COVID-19 pandemic.
Here, we summarize the most interesting questions covered during the January 20 meeting:
Department of State/AILA Liaison Committee Meeting
January 20, 2022 Q & A Highlights
Q: What role do Consular sections assume when determining whether an individual is exempt from the CDC COVID-19 vaccine requirement to gain entry to the U.S.?
A: Consular sections’ role in the process is to ensure that an individual’s request for a [vaccine] exception is filled out in full, and to transmit those requests to the CDC.
Q: If consular posts are involved in transmitting information in support of a humanitarian exception to CDC, what is the process, if any, for making such a request of a consular post outside the context of a visa interview?
A: Travelers should contact the consular section of the nearest embassy or consulate using the information provided on that embassies or consulate’s website
Q: What is the Department of State doing to alleviate the substantial backlogs created by the slowdown of operations at Consular posts and Embassies worldwide?
A: The Department is planning to hire foreign service officers above attrition in FY 2022. The majority will be assigned to a consular position after initial training. Additionally, the Department continues to recruit Limited Non-career Appointment (LNA) Consular Professionals. With very limited LNA hiring in FY 2020 and a pause on LNA hiring in FY 2021 due to CA’s budgetary constraints, Consular Affairs plans to hire more than 60 LNAs in FY 2022
Consular Affairs is working with State’s office of Global Talent Management to ramp up hiring in FY 2022, but many posts will not see these new officers until the second half of FY 2022 or FY 2023, particularly for officers assigned to positions requiring language training. Increased hiring will not have an immediate effect on reducing current visa wait times. Because local pandemic restrictions continue to impact a significant number of our overseas posts, extra staff alone is not sufficient to combat wait times for interviews.
Q: Can Consular Affairs please advise regarding efforts to resume routine consular services?
A: Consular sections abroad must exercise prudence given COVID’s continuing unpredictability. The emergence of the Omicron variant has prompted countries to reevaluate plans to relax travel bans, thereby leading consular sections abroad to recalibrate plans to resume services. Some posts have already fully resumed routine services. Others, in an abundance of caution and out of concern for the health of both consular staff and clientele, are slowly reintroducing some routine services.
Q: Why did the Department of State decide to rescind its prioritization scheme for the issuance of visas at Consular posts and Embassies worldwide? Has the resumption of local post discretion in prioritizing visa interviews assisted posts in clearing out their backlogs?
A: The COVID-19 pandemic significantly limited visa operations starting with the suspension of routine visa services on March 20, 2020. As some routine visa services began to resume in July 2020, the Bureau issued prioritization guidance, giving preference to U.S. citizen services, immigrant visas, students, and other key travelers.
Many Embassies and Consulates have been able to do a tremendous amount of work during this period, while still adhering to the prioritization guidance and keeping our staffing and consular customers safe.
In November 2021, the Department lifted the prioritization framework allowing posts to expand routine visa services and to balance consular services based on local conditions, resources, and priorities. We recognize many posts still have COVID-related occupancy restrictions on space and significant staffing challenges. However, as global travel recovers and resources begin to increase, posts should begin to rebalance workload across consular services to respond to the demand of the rebounding travel sector using all tools and resources available to maximize processing efficiencies.
Q: One potential result of post control over visa interview prioritization is that certain visa classifications might be deprived of appointments for lengthy periods of time. To the extent this might occur, what, if anything, can these constituencies do to alert the post and or Consular Affairs to an urgent need for an appointment?
A: If an applicant has an unforeseen emergency travel need (such as travel for urgent medical care, to attend a funeral, or another urgent humanitarian concern), they may qualify for an expedited appointment, depending on availability, at an embassy or consulate.
To request an emergency or expedited appointment for a nonimmigrant visa, applicants must first submit the online visa application form (DS-160), pay the application fee, and schedule the first available interview appointment, and then follow instructions to request an emergency appointment.
More information, including specific contact information, is available on the individual embassy or consulate’s website. The discretion to approve or deny an emergency appointment request lies with the individual embassy or consulate, and it is important that applicants fully describe how they meet the emergency appointment criteria listed.
Q: Why aren’t the “Visa Appointment Wait Times” posted on the travel.state.gov webpage accurate?
A: Nonimmigrant visas appointment availability is subject to local conditions and resources. The NIV wait time tool on travel.state.gov is available at https://travel.state.gov/content/travel/en/us-visas.html.
Individual embassies and consulates are required to directly update information about their visa wait times. The visa appointment wait time feature of this website is updated on a weekly basis. Applicants are encouraged to regularly review the visa wait time tool on travel.state.gov to ensure they are viewing the most up to date information.
Visa Backlogs and Interview Waivers
Q: What is the DOS doing to reduce the delays and eliminate the visa backlogs?
A: To facilitate international travel, including nonimmigrant work and student travel, the Department authorized consular officers to waive the in-person interview for certain individual petition-based H-1, H-3, H-4, L, O, P, and Q visa applicants on a case-by-case basis, at the consular officer’s discretion, subject to certain statutory limitations on the authority to waive interviews.
The Department also extended consular officers’ discretionary authority, on a case-by-case basis, to waive the in-person interview for certain H-2, F, M, and academic J visa applicants and applicants renewing any visa within 48 months of expiration of a visa in the same category. The Bureau of Consular Affairs is ALSO considering other measures in consultation with the Office of the Legal Adviser.
Q: AILA applauds DOS’s expansion of the NIV waiver authority, to allow consular officers to waive the in-person interview requirement for NIV applicants in the same classification whose NIV expired within 48 months. The current policy is set to expire on December 31, 2021. Is DOS considering further extending this expansion to assist with reducing backlogs and to protect applicants and consular staff from COVID-19?
A: The Department extended consular officers’ discretionary authority, on a case-by-case basis, to waive the in-person interview for applicants renewing any visa within 48 months of expiration of a visa in the same category.
Q: Is DOS rethinking how to provide resources and guidance to facilitate posts’ ability to consistently execute backlog reduction efforts such as the highly efficient interview waiver program?
A: Consular officers may require an in-person interview for any visa applicant potentially covered by an existing interview waiver, based on local circumstances, the applicant’s individual circumstances, or any other factor the officer believes may be relevant to visa eligibility.
This reflects the Department’s view that consular officers in the field are most familiar with relevant local factors, such as fraud trends. For similar reasons, posts may opt to interview all applicants of a particular visa class or classes. Accordingly, the Visa Office anticipates that the percentage of visa applicants requiring an in-person interview will vary by post, depending on relevant circumstances in the country.
E Visa Processing
Q: E-1 and E-2s are important for U.S. economic growth and their issuance is also important in terms of the U.S.’s relationship with treaty countries. Can DOS please confirm why several posts have completely ceased adjudicating E visas and what the plan is to increase E visa processing?
A: During the pandemic, the Visa Office disseminated guidance to embassies/consulates to process certain urgent categories of nonimmigrant visa applicants, even while suspending routine operations.
Although the E visa class is important to U.S. economic growth, our focus at that time was on diplomats/officials, cases with extreme humanitarian circumstances, medical professionals, and visa classes associated with food production and the supply chain.
Concentrating on these priorities sometimes made it difficult for posts to process cases such as E1/E2 visas. As posts resume routine services, many posts are now able to process E visa applicants, although how soon an applicant can schedule an appointment will vary from post to post.
Q: Does CA suggest any improvements that AILA members can make in how they present E visa applications to help facilitate adjudication and reduce burdens on consular officers?
A: While E visa applications represent a small percentage of all visa applications adjudicated by officers, they are more complex than most other nonimmigrant visa classes.
Each post has the discretion to increase the proportion of E visa applications it adjudicates, as it deems most appropriate based on demand, capacity, and any other relevant factors. E visa applicants, therefore, are advised to thoroughly review information on website of the embassy or consulate at which they will apply.
Q: Would DOS consider, as a possible method for achieving consistency and efficiency, creating a centralized adjudication team of subject matter experts (in D.C. or at a regional level) who can review the substantive sections of E-2 cases pending in multiple jurisdictions, thus relieving local Consular Officers from much of the time-consuming and labor-intensive research, study and analysis connected with individual cases?
A: We recognize the particular challenges associated with the adjudication of E2 cases and are always interested in ideas for improving the support we provide consular officers, so we appreciate your suggestion.
Status of Consular Posts in China
Q: Can Consular Affairs please advise as to how its visa processing capacity at posts in China compares to what it was in 2019? Specifically, have the Chinese government restrictions on personnel been alleviated? At what percentage capacity is IV processing in Guangzhou now relative to what it was at the end of 2019?
A: Mission China continues to confront COVID-related restrictions that have affected visa processing capacity. The Department is working to return Mission China posts to pre-COVID staffing levels by the end of FY 2023. Staffing at the Consulate General in Guangzhou is now near pre-pandemic levels, which has contributed to a reduction in pent-up demand for IV appointments from over 23,000 in January 2021 to less than 2,500 in December.
Processing of Visas for Afghan Evacuees
Q: Which country processing posts are assisting Afghan evacuees in third countries?
A: Following the suspension of operations at Embassy Kabul on August 30, 2021, we are unable to provide consular services in Afghanistan for nonimmigrant visa applicants and immigrant visa applicants, including applicants for Special Immigrant Visas.
Subject to local COVID-19 restrictions on processing applications for those not resident in their consular district, we have encouraged posts to open their appointment schedules in a manner as balanced and equitable as possible to applicants present in their consular districts that are not residents or nationals of the country, with resident-like status given to residents of a country in which there is no visa processing post.
Additionally, we continue to process SIV applications at every stage of the SIV process, including by transferring cases to other U.S. Embassies and Consulates around the world where applicants are able to appear.
We recognize that it is currently extremely difficult for Afghans to obtain a visa to a third country or find a way to enter a third country. We are developing processing alternatives so that we can continue to deliver these important consular services for the people of Afghanistan who qualify for these benefits. Developing such processing alternatives will take time and will depend on cooperation from third countries, as well as the Taliban. Consular posts do not adjudicate humanitarian parole or P referral cases (see following questions for consular sections’ limited role in these processes).
Special Immigrant Visas for Afghans
Q: Would DOS consider creating a policy allowing Afghan applicants to apply for SIVs in whatever country where they are located?
A: SIV applicants may apply for their visa at any immigrant visa processing embassy or consulate to which they are able to travel. We have provided guidance to all posts that they should prioritize Afghan SIV processing for those cases that are documentarily complete and ready for interview as they recalibrate visa prioritization. The National Visa Center (NVC) automatically expedites interview ready Afghan SIVs who have requested to be processed at a post outside of Afghanistan.
Q: Please advise of the process by which an Afghan can request that their SIV interview be scheduled in the third country in which they are physically present.
A: Interview-ready SIV applicants may have their cases transferred to a U.S. embassy or consulate outside of Afghanistan that processes immigrant visas by submitting a request to the National Visa Center at NVCSIV@state.gov, including their name, date of birth, and case number.
Q: At what post(s) should Afghans who have fled to Iran apply for visas or humanitarian parole foils (based on USCIS approvals or conditional approvals)?
A: Afghan nationals may contact any U.S. embassy or consulate to apply for a visa or to complete processing of USCIS-approved humanitarian parole. If USCIS has instructed them to obtain a medical exam though a panel physician, keep in mind that only some NIV processing posts have panel physicians (all IV posts do)
Q: AILA members report that consulates have been cancelling F and J nonimmigrant visa interviews for Afghans, with no explanation and no new date for visa interview. What has led to these cancellations and what efforts are being made to provide new appointment dates for these applicants?
A: Any nonimmigrant applicants who may have had their interviews cancelled are welcome to request a new interview. Subject to local restrictions, consular sections have been encouraged to interview applicants temporarily present in their consular districts in a manner that is as balanced and equitable a manner is possible, with resident-like status given to residents of a country in which there is no visa processing post.
Q: Given the dire humanitarian emergency faced by Afghans, would DOS consider waiving some of the visa application requirements?
A: We are not currently considering a new blanket waiver of any visa application requirements for Afghan nationals. We continue, as much as possible, to expedite processing of SIV applications at all other stages of the process that can be performed remotely, such as assessing applicants for COM approval and DHS’s adjudication of the petition for special immigrant status. We are committed to working with Congress and our interagency partners on ways to further streamline the SIV process. This effort is of utmost importance to the U.S. government.
U.S. Embassy Port-au-Prince Haiti
Q: AILA acknowledges the dedication of consular officers at the Embassy in Port-au-Prince who continue to process a limited number of immigrant and nonimmigrant visa applications in a very complex environment. Given the tenuous political and security situation in Haiti, has Consular Affairs considered designating Haitians as a homeless nationality under 9 FAM 504.4-8(E)(1) and appointing other posts in the region to assist Embassy Port-au-Prince with IV applications?
Would other posts in the region be willing to accept third country national (TCN) nonimmigrant applicants from Haiti?
A: U.S. Embassy Port au Prince still provides consular services, though appointment availability has been impacted by COVID, security concerns, and recent fuel shortages. As conditions permit, U.S Embassy Port au Prince will also process a limited number of cases for spouses, fiancés, children, parents, and siblings of U.S. citizens and spouses and children of U.S. Lawful Permanent Residents. Haitian IV applicants may request to transfer cases to other posts where they are able to travel. For IV case transfers, nonresident third country nationals must be physically present in the consular district with permission from the host government to remain there legally for the time it takes to process the case.
Transfer of IV Files from NVC to Post
Q: How are IV files being transferred from NVC to post for documentarily qualified cases?
A: As post-specific conditions permit, NVC will schedule immigrant visa interviews based on post capacity. Posts generally don’t request specific files; instead, they provide interview capacity by visa category. Posts will determine the volume of visa services that they can provide while prioritizing the health and safety of consular staff and applicants. Upon visa availability, NVC fills their available appointment capacity in a first-in, first-out manner based on the date the case was deemed documentarily complete
Q: What factors does a post consider when making a determination of its willingness or ability to accept a Third Country National file for processing?
When posts consider requests to transfer immigrant visa cases for processing, they consider factors such as local restrictions, demand and post capacity, and whether the applicant is physically present in the consular district and has the permission of host government authorities to legally remain for the time it takes to process the immigrant visa. Designated posts process the IV cases for applicants of homeless nationalities. They must be physically present and have host government permission to remain there for the time it takes to complete processing.
Q: Due to the lack of a diplomatic mission in Iran, U.S. IV applicants are directed to Abu Dhabi, Ankara, or Yerevan for interviews. However, all three posts are denying interview transfer requests, stating that they are not processing third country nationals due to COVID-19. Does the DOS have a plan to remedy this issue for immediate relatives of U.S. citizens? For diversity visa selectees?
A: The U.S. embassies in Ankara, Abu Dhabi, and Yerevan are designated processing posts for applicants resident in Iran who indicate their preferred processing posts. These applicants do not need to have their cases transferred if they intend to process at the designated processing post they selected. However, they would need to request transfers if they would like to change to another processing post. We are not aware of any of these posts categorically denying transfer requests.
While posts work through the IV case backlogs, CA encourages posts to accommodate IV case transfer requests from non-resident TCNs physically present in the consular district with permission to remain there legally for the time needed to complete IV processing. If the IV case is with NVC, IV applicants seeking to change processing posts should contact NVC to request a case transfer.
For FY 2022 diversity visa (DV) cases still at KCC, all applicants seeking reassignment, including applicants assigned to posts where there are no visa services available, should contact KCC at KCCDV@state.gov to request a case reassignment.
As worldwide restrictions due to the COVID-19 pandemic begin to ease, and in line with the President’s proclamation regarding the safe resumption of international travel, the Bureau of Consular Affairs is focusing on reducing wait times for all consular services at our embassies and consulates overseas while also protecting health and safety of our staff and applicants. Although local conditions and restrictions at individual consular posts may continue to fluctuate, embassies and consulates have broad discretion to determine how to prioritize visa appointments among the range of visa classes as safely as possible, subject to local conditions and restrictions.
Immigrant Visa Appointments & DV Selectees
Q: AILA understands that posts had an inventory of IVs awaiting interview at the time the pandemic began that had not been processed. Please confirm whether it is DOS’s expectation that posts should interview these applicants first, prior to requesting new documentarily qualified case files from NVC.
A: Previously, posts were working through any immigrant visa backlogs due to the pandemic according to the tiered prioritization that was rescinded in November 2020. Processing of immediate relative and K visa applications, and family preference cases consistent with Congressional direction remains a priority.
NVC continues to schedule IV cases ready for interview, working with posts to adjust for interview capacity.
Q: What is the most effective way to get IV cases at post back into the interview queue?
A: As posts resume routine visa services, the best way to contact a post’s immigrant visa unit regarding an IV case is through the method described on their website and on any interview documents provided by post.
Q: Would KCC consider modifying its policy to effect immediate case transfers for DV selectees from homeless nationalities?
A: First, KCC has temporarily halted document review for DV-2022 and is scheduling cases, in rank order, once processing of the selectee’s DS-260 is complete, the case number is current, and there is an appointment available at the assigned post. Second, it will also be helpful to define terms.
For DV purposes, a case can be reassigned to another post prior to scheduling and transfer to post. Reassignment simply moves the selectee from the queue of cases to be scheduled at one post, to the queue for a different post.
Any selectee, including those mentioned above, can write to KCCDV@state.gov to request reassignment prior to scheduling, and we encourage anyone assigned to a post that is closed to do so. Once a case is scheduled, then a transfer instead of a reassignment must be requested as described in the question.
All cases originally assigned to Embassy Moscow have been reassigned to Embassy Warsaw in accordance with the designation of that post for IV processing.
For cases assigned to Kabul and Baghdad, it is our policy to approve reassignment without qualification to any requested DV-processing post. Please be aware that DV selectees, like all immigrant visa applicants, must be physically present in the consular district where the embassy or consulate is located at the time of interview and have permission to remain in country by the host government for a period sufficient to complete making and processing of the visa application.
Q: Members recently reported O-1/O-2 visa issuance delays due to PIMS not being updated with petition approval at the time of applicant interview at posts such as London, Frankfurt, Madrid, Sao Paolo, Mexico City, and Frankfurt, among others. Based on AILA’s last meeting with KCC from April 25, 2019, once approved petitions arrive at KCC, processing times by KCC for approved petitions were: one day for O, P, T, and U visa petitions; and three days for all other petition categories. Does the PIMS entry process and processing times remain the same? Would KCC consider publishing approximate timelines for PIMS entry process of the petition approval for the various visa categories on the Department’s public-facing website for the public’s reference?
A: That accurately reflects our processing guidelines, and the contractor is currently meeting requirements for processing I-129 documents. Please ask petitioners and applicants not to schedule appointments until they have received an approval notice. In many cases we also depend on petitioners providing the optional second copy of their documents to USCIS, and USCIS providing KCC with that copy. While electronic processing and transmission is increasing, we still receive a significant portion of I-129 documents by USCIS shipping those documents to us. We are working on process improvements that will increase the number of PIMS records created based on approval notices alone, but posts may require additional information not present on an approval notice in order to complete processing of some applications.
IV Visas for Nurses – Manila
Q: Members report many documentarily qualified RNs from the Philippines waiting for IV interviews. Considering the pandemic and the critical nursing shortage in the U.S., would DOS consider increasing IV officer staffing in Manila and prioritization of nurse IV appointments?
A: Recognizing the importance of healthcare workers, we have asked that our top healthcare IV issuing posts, including Manila, prioritize these appointments when possible. Worldwide, we expect to adjudicate 5,000 visa applications for healthcare workers and their family members between December 1st and the end of February.
Manila alone is expected to adjudicate nearly 4,000 visa applications for healthcare workers and their family members during this period. These numbers are, of course, estimates. Changing conditions related to the ongoing pandemic and other factors may positively or negatively impact the actual numbers. Manila has already reported an almost 100 percent increase in cases processed in this FY, over those processed in prior FYs, including those before the pandemic. We have prioritized filling vacant officer positions in Manila in order to accommodate demand for healthcare and other IVs.
Q: Would Embassy Manila please consider establishing a separate email address for nurse expedite requests?
A: Please continue to use the existing visa inquiry form at: https://ph.usembassy.gov/visas/immigrant-visas/immigrant-visa-inquiry-form/. Consular staff at Embassy Manila will prioritize any inquiries from healthcare workers.
U.S. Embassy Ciudad Juarez
Q: AILA greatly appreciates the resumption of immigrant visa appointments in CDJ. What is the current process for scheduling IV appointments in CDJ? Are NVC and CDJ working on a solution to allow at least a few weeks’ lead time between notification of the appointment and the interview?
A: We constantly strive to implement new ways to improve the applicant experience and at the same time reduce the number of applicants who do not arrive on time for interview appointments. Ciudad Juarez and NVC are jointly working on a new solution which will be utilized for applicants who will be scheduled for appointments in February 2022 and beyond. Post and NVC will continue to closely monitor scheduling to ensure all visa applicants receive timely notification of their interview appointments.
Q: In light of the administration’s desire to increase transparency, would DOS be willing to report statistics on the number of pending Security Advisory Opinions (SAO), as well as those cleared within a given period?
A: The SAO backlog remains substantial for similar reasons reported at the outset of the pandemic. Though we were able to process numerous longer-standing SAOs in the time when the inflow of SAOs was reduced, the inability to be fully staffed in-office did and continues to hinder our ability to put a significant dent in the SAO backlog. We will continue to strive to minimize the length of administrative processing and remain able to clear the vast majority of SAOs within a 30-day period. There are no plans to publish additional statistics on SAOs at this time.
Consular I-212 Filings
Q: Please describe the process of how to file I-212’s at U.S. Consulates overseas. In particular, please advise where the public can find instructions for how to file such requests with Embassy New Delhi.
A: As reflected in paragraph (b)(1) of 9 FAM 302.11-2(B)(5) (U) Permission to Reapply or Consent to Reapply (CTR), a Form I-212 may not be required in certain situations; however, when it is required, to determine how best to file a I-212, an applicant or a legal representative should first determine whether there is a DHS office at the relevant embassy or consulate. if not, they should email the consular section asking how best to proceed.
In the case of New Delhi, they should contact the USCIS New Delhi Field Office: https://www.uscis.gov/about-us/find-a-uscis-office/international-offices/indiauscis-new-delhi-field-office.
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