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Law360 (May 10, 2021, 5:33 PM EDT )
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| Dominique Pando Bucci |
Since March 2020, U.S. embassies and consulates around the world have been providing very limited services, mostly to U.S. citizens abroad. More than a year into the pandemic, posts are still operating at reduced capacity. Visa interviews are being canceled or rescheduled, or are simply unavailable.
Clients are stressed and concerned. Many have been waiting overseas for their visa appointments for over a year. Others are scared to leave the U.S. to attend their interviews because potential unexpected cancelations caused by lockdowns could force them to stay outside of the U.S. for an unknown period of time.
Attorneys wish they could do more to help their clients. We wonder what the current processing times at specific posts are. Do our clients qualify for expedited appointments? Which posts are scheduling appointments for third country nationals? Will posts waive interviews for our clients?
While practitioners cannot influence local conditions or the resumption of routine visa services, described below are some tools in our arsenal to reduce wait times.
It is commendable that the State Department is being transparent about the backlogs. But unless the Biden administration provides a solution that speeds up visa issuances, foreign nationals will be stuck abroad for many months to come. The backlog will continue hurting families separated by the pandemic and harming U.S. businesses supported by foreign national workers.
Immigrant Visa Backlog
The extent of the immigrant visa backlog caused by consular closures can be measured by the number of documentarily qualified applications in line for the next interview appointment.
The National Visa Center, which preprocesses immigrant visa applications for consular posts, has seen more than an 800% increase in pending applications waiting for interviews during the pandemic.[2] As of March 31, 494,289 applications were pending at the visa center, compared to an average of 60,866 applications each month in 2019. Only 18,979 applicants were scheduled for April interviews. Hardly enough to make a dent on the backlog.
E Visa Backlog Case Study
Nonimmigrant visa issuances are also significantly backlogged. The E visa statistics published by the State Department illustrate the crushing impact the pandemic has had on visa issuances by specific posts.
Treaty traders (E-1) and treaty investors (E-2) are nonimmigrants who come to the U.S. to engage in international trade, or to invest a substantial amount of capital in, develop and direct a U.S. enterprise. They are entrepreneurs. They are risk takers. They contribute to the U.S. economy and create American jobs.
Nevertheless, fewer than 50% of treaty trader and treaty investor visas were issued abroad during the COVID-19 pandemic.[3] According to State Department data, 48,712 E visas were issued worldwide the year before the pandemic. But only 22,995 E visas were issued between March 2020 and February.
E visa issuances plummeted the first four months of the pandemic. April, May, June and July 2020 saw a 92% drop in E visa issuances compared to the previous year, correlating with the State Department's suspension and phased resumption of routine visa services between March 20, 2020 and July 14, 2020.[4] And visa issuances have not recovered to prepandemic levels.
As of March 2021, the most current statistics indicate that still fewer E visas are being issued each month than in the months preceding the pandemic.
The pandemic has affected all posts around the world, including the top 10 E visa posts. A few posts have been able to clear some of the early-pandemic backlog. Most are facing an immense number of visa applications that were filed months or even more than a year ago, which still need to be adjudicated.
The U.S. Consulate in Osaka-Kobe, Japan, and U.S. Embassy in Seoul, South Korea, have been exemplary in their efforts to reduce the April to July 2020 backlog.
Twelve months into the pandemic, both posts have issued nearly as many E visas over the past year than before the pandemic. The posts accomplished this by significantly increasing the number of visas issued each month compared to the previous year after the State Department announced the phased resumption of visa services in July 2020.
The U.S. embassy in London, on the other hand, has struggled the most out of the top 10 posts, issuing only 14% of the number of E visas issued the previous year. In April, May, June and July 2020, London issued no E visas at all. In March 2021, the post still only issued 18% of E visas compared to March 2019.
Now that lockdowns are being lifted in the country due to the successful vaccination rollout, we may see an uptick in visas issued in the coming months.
The U.S. embassy in Tokyo issued less than two-thirds of E visas compared to before the pandemic. The consular posts in Frankfurt, Germany, Paris, Rome and Madrid issued fewer than half of the number of E visas than the previous year. The consulate in Toronto issued a quarter of the number of E visas compared to before the pandemic. And the consulate in Ciudad Juarez, Mexico, issued a fifth of the number of E visas issued the previous year.
Non-top 10 posts also issued a fraction of the number of E visas than before the pandemic: Sao Paulo less than 2%; Bogota, Colombia, and Copenhagen, Denmark, 4%; Istanbul 6%; Buenos Aires, Argentina, 7%; Dublin 11%; Sydney 22%; Calgary, Canada, 26%; Stockholm 30%; Monterrey, Mexico, 33%; Vancouver, Canada, 38%; and Tel Aviv, Israel, 42%.
Overall, during the first 12 months of the pandemic, four regions issued 89% of all E visas: Japan 49%; Europe 24%; South Korea 10%; and Canada 6%. These numbers appear to correlate with the respective counties' level of success navigating the pandemic.
Prioritization of Visa Appointments
We now have information we need to inform our clients whether their applications are at the front or back of the line for interviews.
On April 30, the State Department announced a four-tiered approach to immigrant visa prioritization.[5]
- Tier One: Adoption visas, age-out cases, and certain special immigrant visas for Afghan and Iraqi nationals working for the U.S. government.
- Tier Two: Immediate relative, fiancé(e) and returning resident visas.
- Tier Three: Family preference and special immigrant visas for certain employees of the U.S. government abroad.
- Tier Four: All other immigrant visas, including employment-based and diversity visa petitions.
Immigrant visa appointments will be prioritized over all nonimmigrant visa appointments.[6]
Posts that process nonimmigrant visas will prioritize travelers with urgent needs, foreign diplomats, mission-critical categories of travelers — who assist with the response to the pandemic or whose work is essential to the food supply — followed by students, exchange visitors and some temporary employment visa applicants.
Based on this new guidance on prioritization, nonimmigrant applicants unfortunately will have to wait much longer for their visas.
Geographical COVID-19 Travel Bans
Another factor affecting when clients can get their visas are the geographical COVID-19 travel bans.[7]
The four geographical COVID-19 presidential proclamations, with certain exceptions, place restrictions on visa issuance and entry into the U.S. for individuals physically present in China, Iran, Brazil, South Africa, India, the United Kingdom, Ireland and the 26 countries in the Schengen Area.[8]
Visa applicants covered by the geographical travel bans must demonstrate that they will provide vital support for critical infrastructure, or, in compelling circumstances, that travel will directly support the creation or retention of U.S. jobs to qualify for a national interest exception waiver under Section 212(f) of the Immigration and Nationality Act. As a result, individuals who are not exempt from these proclamations will be at the bottom of the prioritization list.
When Can We Expect a Return to Normal?
In light of embassy and consulate closures, limited processing and recent State Department policy changes, it may take more than a year for posts to clear the visa backlog.
Practitioners can help clients by setting realistic expectations of the visa processing times. Clients who are in the U.S. may be under the impression that the rest of the world is on the same quick path to pandemic recovery as the U.S. However, the majority of the world is still in the throes of the pandemic, and that's where consular posts are located.
The resumption of visa services is occurring on a post-by-post basis, based on COVID-19 cases, local and national lockdowns, travel restrictions, host-country quarantine regulations and medical infrastructure, local emergency response capabilities, and measures taken by posts to contain the spread of the virus.
The U.S., as well as the U.K. and Israel, are forging ahead as the leaders of the global vaccination effort. In the U.S., nearly a third of the population is fully vaccinated — over 100 million adults — and almost half has received the first dose.[9]
Shops, restaurants and schools are reopening. Offices are transitioning from work-from-home to in-office. Local tourism is beginning to flourish. And morale is up. Life is returning to some semblance of normality.
Europe, on the other hand, is still in lockdown, which is exacerbated by the vaccine shortage. Germany, despite being the leader in European Union vaccination rates, still sees stores, restaurants, hotels, museums and attractions closed. Hospitals are at capacity. Schools are teaching remotely. People can't visit family or friends. There is no tourism. Travel within the country is heavily discouraged. Nightly stay-at-home orders are in place.
Scientists estimate that 70% of the population needs to be vaccinated to achieve herd immunity.[10] So far only 8% of Germans — 6.6 million — are fully vaccinated.[11] By the end of June, Germany is expecting to receive nearly 50 million doses of vaccines, provided manufacturers meet their delivery deadlines.
Currently just under one-million shots are being administered daily. This means that half of Germany's 83 million in population could receive their first shot by the fall.[12] Based on these numbers, clients should not expect a return to prepandemic processing times this year.
The majority of consular posts around the world are far from being able to return to routine visa operations. And once that milestone is reached, posts will still need additional time and resources to clear the current backlog.
Practitioners could look at the State Department's visa issuance data for a particular post, the local COVID-19 numbers and vaccination rates to roughly guess when clients could expect to be scheduled for interviews.
Tools for Practitioners
Practitioners have a few options to make it possible for clients to live and work in the U.S. sooner.
Request Interview Waiver from Consular Post
On March 11, the State Department extended its policy to expand interview waivers for individuals applying for a nonimmigrant visa in the same classification if their visa expired within 48 months, until December 31.[13]
Request Visa Waiver from Customs and Border Protection
Under INA 212(d)(4), U.S. Customs and Border Protection may admit to the U.S. a nonimmigrant who does not hold a valid visa due to an unforeseen emergency.[14] The request is filed with the port of entry on U.S. Department of Homeland Security Form I-193, Application for Waiver of Passport and/or Visa.
Extend Status in the U.S.
Advise clients against renewing visas abroad until the backlog is cleared. When possible, discourage clients from traveling abroad and instead file for an extension of status while in the U.S. with U.S. Citizenship and Immigration Services.
Sue
For some clients, filing a lawsuit in federal court challenging the processing delays might be an option.
Conclusion
We have a long road ahead of us. The majority of our clients will have to remain patient as the world begins to recover from the pandemic or the Biden administration provides a solution to the visa backlog, such as expanding the interview waiver or visa waiver options. In the meantime, practitioners have several tools available to them to try to reduce the wait times for their clients.
In the context of business immigration, entrepreneurs stimulate economic growth. Limited consular services, the deprioritization of nonimmigrant visas and geographic travel bans put at risk the viability of U.S. enterprises founded or run by foreign nationals. It is unsustainable for executives and managers to run their businesses from abroad for the foreseeable future. Their continual absence will trickle down and eventually affect the operations of their enterprise. This is not only likely to harm American businesses relying on the enterprise's goods and services. But potential layoffs could cost Americans their jobs and health insurance coverage.
As the U.S. emerges from the pandemic, the Biden administration should facilitate visa issuances and entry into the U.S. to help the country's economic recovery and promote a return to normalcy.
Dominique Pando Bucci is an associate at Kurzban Kurzban Tetzeli and Pratt PA and a German Chancellor Fellow of the Alexander von Humboldt Foundation.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] U.S. Department of State, Visa Services Operating Status Update (April 6, 2021), https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (last accessed May 3, 2021).
[2] U.S. Department of State, National Visa Center (NVC) Immigrant Visa Backlog Report (April 2021),
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html (last accessed May 3, 2021).
[3] Author's analysis based on data from the U.S. Department of State's nonimmigrant visa issuance statistics for March 2019 to February 2021, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html (last accessed May 3, 2021).
[4] U.S. Department of State, Suspension of Routine Visa Services (July 22, 2020), https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last accessed May 3, 2021).
[5] U.S. Department of State, Immigrant Visa Prioritization (April 30, 2021), https://travel.state.gov/content/travel/en/News/visas-news/immigrant-visa-prioritization.html (last accessed May 3, 2021).
[6] U.S. Department of State, Visa Services Operating Status Update (April 6, 2021), https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html (last accessed May 3, 2021).
[7] U.S. Department of State, National Interest Exceptions for Certain Travelers from China, Iran, Brazil, South Africa, Schengen Area, United Kingdom, and Ireland (April 26, 2021), https://travel.state.gov/content/travel/en/News/visas-news/national-interest-exceptions-for-certain-travelers-from-china-Iran-brazil-south-africa-schengen-area-united-kingdom-and-ireland.html (last accessed May 3, 2021); PP 10XXX (India), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/04/30/a-proclamation-on-the-suspension-of-entry-as-nonimmigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease-2019/ (last accessed May 3, 2021).
U.S. Department of State, COVID-19 Travel Restrictions and Exceptions (May 6, 2021), https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/covid-19-travel-restrictions-and-exceptions.html (last accessed May 10, 2021).
[8] The presidential proclamations are PP 9984, 9992, 10143 and 10199. The Schengen Area comprises Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.
[9] U.S. Centers for Disease Control and Prevention, Covid Data Tracker (May 2, 2021), https://covid.cdc.gov/covid-data-tracker/#vaccinations (last accessed May 3, 2021).
[10] Aisling Irwin, What It Will Take to Vaccinate the World Against COVID-19, Nature (March 25, 2021) https://www.nature.com/articles/d41586-021-00727-3 (last accessed May 3, 2021).
[11] German Federal Ministry of Health, Vaccination Dashboard (May 3, 2021), https://impfdashboard.de/ (last accessed May 3, 2021).
[12] German Federal Ministry of Health, Vaccine Delivery Forecast (April 28, 2021), https://www.bundesgesundheitsministerium.de/coronavirus/faq-covid-19-impfung.html (last accessed May 3, 2021).
[13] U.S. Department of State, Expansion of Interview Waiver Eligibility (March 11, 2021), https://travel.state.gov/content/travel/en/News/visas-news/expansion-of-interview-waiver-eligibility.html (last accessed May 3, 2021).
[14] U.S. Department of Homeland Security, Form I-193, Application for Waiver of Passport and/or Visa, https://www.uscis.gov/i-193.
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