On March 31, 2021, the Trump administration’s Proclamation 10052, which had suspended the entry of certain H-1B, H-2B, J, and L nonimmigrant visa holders and their dependents to the United States, expired. In addition, on February 24, 2021, the Biden administration lifted Proclamation 10014, which had suspended the entry of certain immigrant visa holders through March 31, 2021. Despite these policy developments, applicants for nonimmigrant work visas and immigrant visas can still expect continued delays in obtaining visas due to COVID-19–related issues. U.S. consular posts around the globe continue to suspend routine nonimmigrant visa services in light of regional and local conditions. Further, COVID-19 travel bans are still in effect in the United States for certain travelers coming from various parts of the world, and applicants continue to face backlogs in appointment scheduling due to the growing number of people applying for appointments at embassies and consulates worldwide.
Current State Department Operational Status
The U.S. Department of State has issued two critical updates since the expiration of Proclamation 10052. On April 1, 2021, the State Department stated the following:
Visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing Visa Services Operating Status Update guidelines, last updated as of April 6, 2021. Visa applicants who were previously refused visas due to the restrictions of Presidential Proclamation 10052 may reapply by submitting a new application include a new fee.
The State Department further stated that the “[r]esumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post-basis, consistent with the Department’s guidance for safely returning [its] workforce to Department facilities,” and that “U.S. Embassies and Consulates have continued to provide emergency and mission-critical visa services since March 2020 and will continue to do so as they are able.”
Notwithstanding the State Department’s update, the majority of U.S. embassies and consulates have continued to suspend their routine nonimmigrant visa services due to growing COVID-19 case numbers worldwide, and as such, it has been, and may continue to be, challenging for applicants to secure visa appointments without an underlying urgent need to travel.
Current State Department Guidelines and Updates
The State Department’s “Visa Services Operating Status Update” guidelines, which were most recently updated on April 6, 2021, confirm the following:
- “The COVID-19 pandemic continues to severely affect the ability of embassies and consulates around the world to … resume routine visa services.” The constraints, which vary based on local conditions and restrictions, such as quarantine regulations and national or local lockdowns, have “reduced appointment capacity during the pandemic,” creating “a significant backlog of both immigrant and nonimmigrant visa applicants awaiting … visa interview[s],” among other issues outside the control of the State Department.
- The State Department, after prioritizing services for U.S. citizens, is prioritizing the following:
- “[I]mmigrant and fiancée visa [applications], particularly for immediate relatives and other family-sponsored applicants”
- “[I]mmigrant visa cases previously refused under the rescinded Presidential Proclamations 9645 and 9983”
- Nonimmigrant visa applications for “travelers with urgent needs, foreign diplomats, mission-critical categories of travelers [e.g., medical professionals coming to the United States to treat COVID-19], [and] students, exchange visitors, and some temporary employment visas”
The State Department confirmed that it is “closely monitoring local conditions in each country where [it has] a U.S. presence” and further clarified that “[l]ocal conditions that may affect when [the State Department] can begin providing various public services include medical infrastructure, COVID-19 cases, emergency response capabilities, and host/local government restrictions.”
In light of these lengthy delays, the State Department is temporarily extending the expiration of Machine Readable Visa (MRV) application fees, which are normally valid for only one year following payment. Per the State Department’s “Visa Services Operating Status Update” guidelines, the MRV fees are now valid until September 30, 2022, and are subject to further extension. The State Department recommends that applicants continue monitoring their respective consulate websites for updates on processing and appointment availability.
What This Means for Employers
Although the lifting of certain COVID-19–based restrictions on nonimmigrant and immigrant visa processing is a positive sign overall, many challenges remain. First, as the State Department indicates, the ongoing COVID-19 pandemic, and more importantly, local conditions and/or regulations, will control operational capabilities on a consulate-to-consulate basis. This means that where stricter regulations exist or COVID-19 cases are rising, it may be more challenging for applicants to secure an appointment and obtain a visa irrespective of various expiring restrictions.
Second, regional COVID-19 travel bans remain in effect, banning significant numbers of travelers coming to the United States from across various parts of the world, including the United Kingdom, Ireland, the Schengen Area, Brazil, South Africa, China, Iran, and now India. These bans are not set to expire on a specific date, but rather will expire at the discretion of the president. Applicants coming to the United States from affected regions may face issues in scheduling appointments and securing travel exemptions, otherwise known as “national interest exceptions,” allowing for direct travel to the United States despite the bans.
Lastly, some U.S. embassies and consulates, although operational, are prioritizing applications, with applications for nonimmigrant work visas having a lower priority than other categories. Given the circumstances, unless applicants for nonimmigrant work visas can demonstrate an “urgent” need to travel for business (e.g., a need to travel within 10 days from appointment or visa approval), embassies and consulates may be reluctant to grant emergency appointments to them.
As such, despite the lifting of various COVID–19 based restrictions, issues at the consular level are likely to remain for the foreseeable future.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog and in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
