In recent US immigration developments, the Department of State has authorized consular offices to forgo the in-person interview requirement for some nonimmigrant visa applicants. Further, President Joseph Biden has revoked the travel ban that had been in place for noncitizens traveling as immigrants or nonimmigrants who were physically present in certain African countries.
In consultation with the US Department of Homeland Security, the Secretary of State on December 23 authorized consular offices to waive in-person interview requirements for certain nonimmigrant visa applicants through December 31, 2022.
This new authorization applies to the following:
Temporary workers applying for H-1, H-3, H-4, L, O, P, and Q visas: Under this authority, consular officers have 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, 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 applicants who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), 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). Applicants under these visa categories must be applying for a visa in their country of nationality or residence.
Due to the requirement for the visa application to be based on a US Citizenship and Immigration Services (USCIS) approved individual petition, applicants for visas that are not based on an underlying USCIS petition, such as Blanket Ls, are not eligible for the visa interview waiver.
F, M, and academic J applicants: The Department of State has extended the previously approved policies to waive visa interviews for certain students, professors, research scholars, short-term scholars, or specialists (F, M, and academic J visa applicants) through December 31, 2022. Similar to the policy for certain individual petition-based visa applicants, consular officers have the discretion to waive the interview for F, M, and academic J visa applicants who were previously issued any type of visa, 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 F, M, and academic J visa applicants who are citizens or nationals of a country that participates in VWP and who have previously traveled to the United States via an ESTA authorization, provided they have no apparent ineligibility or potential ineligibility. However, applicants eligible for waiver authority because they are citizens or nationals of a VWP participating country now must have previously traveled to the United States using an ESTA authorization to qualify. Applicants must apply for a visa in their country of nationality or residence.
H-2 applicants: The previous authority allowing for waiver of interview of certain H-2 (temporary agricultural and non-agricultural workers) applicants has also been extended through the end of 2022.
Visa renewal: The authorization provided to consular officers to waive the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration has been extended indefinitely. This broad language suggests that interview waivers could be extended even to renewals for B-1/B-2 applicants, many of whom would benefit, given lengthy visa appointment wait times at certain posts.
The Department of State has not yet provided clear guidance on the procedure that should be followed by applicants who qualify for the visa interview waiver but who had already scheduled a visa interview prior to the December 23 announcement. We will be monitoring developments with respect to these new policies and provide regular updates on them.
On December 28, 2021, President Biden signed a presidential proclamation titled “A Proclamation on Revoking Proclamation 10315.” This proclamation, which will take effect at 12:01 am EST on December 31, 2021, revokes Presidential Proclamation (PP) 10315, which suspended the entry of certain noncitizens traveling as immigrants or nonimmigrants who were physically present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe during the 14-day period prior to their entry or attempted entry into the United States.
As of January 1, 2022, PP 10315 will no longer prevent entry into the United States of immigrants and nonimmigrants who were physically present in these countries, and routine visa issuance to individuals subject to that Proclamation by US consular posts in those countries will resume. Applicants whose cases were refused solely due to their presence in a country impacted by PP 10315 may contact a US consulate and request reconsideration. It should be noted that testing and vaccination requirements for travel to the United States remain in place.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Eleanor Pelta
Eric S. Bord
Shannon A. Donnelly
Miami
Laura C. Garvin