Here are some updates regarding the U.S. Department of State and U.S. consulates.
Status of Consular Operations After COVID-19 Pandemic
The global COVID-19 pandemic effectively closed regular visa processing at U.S. consular offices worldwide. Many consular officers returned to the U.S. with their families. The global restrictions on travel and local country restrictions on public places curbed the consular officer’s ability to interview applicants, as required by law to process visas. U.S. consular officers continued working remotely, but with limited virtual access given the legal requirements and sensitive nature of their work.
From a financial perspective, the vast majority of revenue for consular operations comes for user fees paid by visa applicants. Without applicants the revenue stream was sliced in half, leaving many consular positions unfilled in 2020 and 2021. In addition, prior to the pandemic, many career officers retired or resigned. These pandemic restrictions, loss of revenue for hiring and operations combined with the attrition rates for the diplomatic corps, halted or severely slowed visa processing.
Nonimmigrant Visa Processing
In December 2021, the Secretary of State and Department of Homeland Security authorized consular officers to make changes to the processing steps to address the backlog.
The waiver of in-person interview requirements for designated nonimmigrant visas applicants through the end of 2022 has been an effective tool in reducing the visa processing backlogs at high-volume consular post. Under this authority, consular officers were granted the discretion to waive the visa interview requirement for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa, and who have never been refused a visa unless such refusal was overcome or waived, and who have no apparent ineligibility or potential ineligibility; or first-time individual petition-based H-1, H-3, H-4, L, O, P, and Q who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP with ESTA clearance), provided they have no apparent ineligibility or potential ineligibility and have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).
96 percent of U.S. embassies and consulates are again operational and interviewing visa applicants
The current statistic for nonimmigrant visa issuance for consular posts in all visa categories worldwide, according to the State Department, for September 2022 is 718,175 compared to 290,312 in September 2021
Nonimmigrant visa application processing is at 94 percent of pre-pandemic monthly averages and immigrant visa applications are at 130 percent
In the past 12 months (through Sept. 30, 2022), the Department of State Consular Service has processed 8 million nonimmigrant visas, which the government notes is well ahead of the best case projections
The State Department set priorities with nonimmigrant visa processing by categories. However, it is now using some discretionary authority to broaden the scope of categories eligible for interview waivers and procedural innovations to increase processing and reduce backlogs for nonimmigrant applicants. These changes include:
Third Country National (TCN Processing – Third Country National processing is when a foreign national applies for a visa at a U.S. Consulate outside their home country. It is strongly being encouraged by the Department of State Visa Office in Washington, D.C., to shift consular workloads to slower consular post. By regulation, foreign nationals may appear before U.S. consular posts anywhere in the world. They are not required to process in their home country. The only risk is if they are denied the visa, they cannot re-enter the U.S. directly; they must reapply at the U.S. consular post in their home country. Thus, foreign nationals should actively explore this option if the wait times for visa processing at the U.S. consulate in their home country is backlogged.
Additional Categories Considered for Interview Waivers – Discretion is being given to consular posts to grant interview waivers to visa categories excluded from the DHS executive order. These include E visa applicants requesting a renewal under the same facts as the prior application. This policy change is being implemented at the U.S. consulate in Toronto, Canada, and other posts are being encouraged to do the same. This will help to reduce backlogs at consular posts that have had cases pending for 14 months before review, such as in Rome, Italy.
Stateside Visa Processing for Renewals – This is a practice permitted by State Department regulations, but stopped years ago when biometrics became a requirement for security clearances in the early 2000s. The foreign national would apply directly to the State Department for renewal of a visa stamp in the same category. It eliminated the process and expense of applying at the U.S. consulate abroad for the renewal and reduced the workload of the consular unit. However, the State Department has been hesitant to restore this process, but says it is seriously considering it. Perhaps, more advocacy by the business community would result in a positive outcome on this issue.
A useful tool for planning is the State Department’s Visa Appointment Wait Time system
Immigrant Visa or “Green Card” Processing Through the NVC
As of Oct. 31, 2022, the backlog of immigrant visa cases (green card cases) at the State Department’s National Visa Center (NVC) in New Hampshire was 423,367 – a very high backlog. The NVC processes cases for in-person interview and adjudications at over 400-plus U.S. Consulates abroad. These are documentarily completed and ready for interview cases, but they are holding for an interview because either there is a consular personnel shortage or local country restrictions impede the volume increase on in-person interviews.
Despite efforts to work quickly through these backlogs, the adjudications process is very slow and expected to continue into late 2023. For example, in September 2022, the total issuance rate of immigrant visas was at 57,186 compared to 14,894 in September 2020 during the COVID-19 pandemic. This is an enormous increase, but more resources and accessibility are needed to clear the current backlog to pre-pandemic levels of well over 100,000.
To compound these backlogs and communication efforts, on June 1, 2020, the NVC stopped accepting or responding to inquiries by mail. The best means to communicate with the NVC is a Public Inquiry Form online, which has a slow response time with often-inaccurate responses.
As a further shock to the immigrant/green card process, on May 23, 2022, the NVC suspended the Public Inquiry telephone service to address critical backlogs
In summary, U.S. embassy and consular operations are diligently but slowly returning to pre-pandemic levels of visa processing. Nevertheless, more resources and accessibility are required to reach full capacity. For foreign nationals applying for visas abroad, it is critical to plan far in advance of travel and to monitor visa availability thorough the consular visa services system. Alternative plans are necessary and flexibility is required. Hopefully, by the end of 2023, the U.S. Department of State Bureau of Consular Affairs operations will be fully staffed and operational.
The lessons learned from this global crisis are that risk management, backup systems and infrastructure support are critical to maintaining full operational capacity, whether for government in visa processing or for private industries in the critical supply chain.
© 2022 BARNES & THORNBURG LLPNational Law Review, Volume XII, Number 322