Consulate Reopening and the Resumption of Visa Services
Brandon Neuman, Attorney
For foreign nationals, traveling to the United States typically requires a visa or a visa waiver issued by the local consulate. Under normal circumstances, getting the visa stamp in a passport may require some initial preparation or authorization followed by scheduling and attending a visa appointment, then receiving the visa stamp.
Likewise, in normal circumstances, immigrants undergoing consular processing (for an immigrant visa, also known as a green card) would typically be able to go through a consular interview process in about half the time compared to immigrants in the United States who chose to pursue an adjustment of status.
With COVID, the visa process for immigrants and nonimmigrants at consulates is now more complex. Here is a brief run-down of the latest updates from consulates and the State Department on some key issues affecting immigrant and nonimmigrant visas:
Presidential Proclamation 10052 Sunset
Presidential Proclamation 10052 expired on March 31, 2021. This proclamation temporarily suspended the issuance of H-1B, H-2B, J, or L visas and prevented many H-1B, H-2B, J, or L visa applicants from entering the United States.
Because President Biden chose not to extend PP10052, otherwise eligible individuals may now apply for H-1B, H-2B, J, or L visas. In addition, if they otherwise have valid H-1B, H-2B, J or L visas, they may now seek admission back into the United States.
While these visa applicants may apply for their visas or seek admission to the US, they may be impacted by other COVID-19 travel bans. Moreover, consular posts are still operating at limited capacity, or remain closed, resulting in fewer appointments and less availability.
Consular Processing for Green Cards (PP 10014 Sunset and Immigrant Visa Processing Priority)
Presidential Proclamation 10014 expired on March 31, 2021. Issued by President Trump in 2020, this proclamation temporarily suspended consular processing of immigrant visas (green cards) to prospective lawful permanent residents in the United States. Now that the proclamation expired, US consulates resumed consular processing of green cards in all categories.
However, the Department of State recently announced a priority order for processing efforts:
- Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)
- Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
- Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
- Tier Four: All other immigrant visas, including employment preference and diversity visas
Where possible, consulates are scheduling some appointments within all four priority tiers every month, but consulates continue to report a significant backlog of all immigrant visas. Although the new prioritization plan instructs consulates to schedule and adjudicate some Tier Three and Tier Four categories each month, all immigrants in the family preference, employment-based, and diversity visa categories should expect continued delays in consular processing for at least the remainder of the federal fiscal year.
COVID-19 Travel Ban Expansion and National Interest Exception (PP 9984, 9992, 10143, 10199)
Schengen Area in Europe, the United Kingdom, Ireland, South Africa, Brazil, India, China, and Iran.
If a visa applicant or a visa holder subject to the travel ban lives in an affected area, the prospective traveler can either go to an unaffected location (while complying with that country’s entry requirements) and wait for at least 14 days before proceeding to the United States, or the prospective traveler would need to qualify for a National Interest Exception (NIE).
The travel bans generally do not apply to:
- U.S. citizens;
- Lawful permanent residents;
- Spouses and dependent children of U.S. citizens or lawful permanent residents;
- Parents or legal guardians of a dependent U.S. citizen or lawful permanent resident unmarried minor child;
- Siblings of a U.S. citizen or lawful permanent resident child, provided both are unmarried and under the age of 21;
- U.S. noncitizen nationals (not applicable to Proclamations 9984 (China) and 9992(Iran));
- Travelers for the purpose of the containment or mitigation of COVID-19; and
- Those whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
National Interest Exceptions (NIEs) are available to:
- Immigrants of all categories (not applicable to Proclamation 10199, which only covers nonimmigrant travel);
- Fiancé(e)s of U.S. citizens and their dependents;
- Certain exchange visitors;
- Students (F, M, and certain J visas) as described here. New or returning students present in China, Brazil, Iran, South Africa, or India may arrive no earlier than 30 days before the start of an academic program beginning August 1, 2021 or after, including optional practical training (OPT);
- Academics (certain J visas to include those in the professor, research scholar, short-term scholar, or specialist categories);
- Journalists (I visas);
- Travelers providing vital support for critical infrastructure sectors, or directly linked supply chains, which are defined by CISA as:
- Commercial Facilities;
- Critical Manufacturing;
- Defense industrial Base;
- Emergency Services;
- Financial Services;
- Food and Agriculture;
- Government Facilities;
- Healthcare and Public Health;
- Information Technology;
- Nuclear Reactors;
- Materials, and Waste;
- Transportation Systems; and
- Water and Wastewater Systems;
- Pilots and aircrew traveling for training or aircraft pickup, delivery, or maintenance;
- Those whose purpose of travel falls within one of these categories:
- Lifesaving medical treatment for the principal applicant and accompanying close family members;
- Public health for those travelling to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g., cancer or communicable disease research);
- Humanitarian travel, to include those providing care for a U.S. citizen, lawful permanent resident, or other nonimmigrant-in-lawful-status close family member;
- Medical escorts, legal guardians, or other escorts required by an airline or legally required by a foreign medical or law enforcement entity accompanying a U.S. citizen being repatriated to the United States;
- National security; and
- Derivative family members accompanying or following to join a noncitizen who has been granted or would be reasonably expected to receive a National Interest Exception (NIE), or is not otherwise subject to the Proclamations and who is engaging in certain types of long-term employment, studies, or research lasting four weeks or more.
Temporary workers present in South Africa whose travel is essential to food supply chain (H-2A and certain H-2B visas) are also excepted travelers.
Travelers present in the countries affected by the travel bans who believe they have an urgent need for travel to the United States (and who do not fit the above categories) should apply for an individual NIE. If recommending approval, the embassy or consulate will forward their recommendation to the Department of State for consideration.
If a traveler needs to obtain both a visa (first-time issued or renewed) and an NIE, the traveler should check with the consulate to determine the appropriate application procedure to receive both the visa and the NIE authorization.
Based on our experience, the most frequently requested NIEs are those for employees who are providing vital support to a company that provides services for a critical infrastructure sector. As every consulate handles NIE requests differently, a traveler should check with their local US consulate to determine the specific process for applying for an NIE.
Most consulates want an NIE application to be submitted within 2-4 weeks before travel to the United States.
Experience also shows that NIE requirements change or receive updates on a near-weekly basis, and further Presidential Proclamations can be issued without warning. If you have questions related to travel or current requirements for NIEs, please contact GIP’s office at firstname.lastname@example.org.
Consular Re-opening Changes / Announcements
United States embassies and consulates around the world are currently in a phased resumption of routine visa services. However, local impacts of COVID-19 may cause rolling cancellations of visa appointments at local consulates, and some consulates may be unable to resume regular services depending on local restrictions or regulations.
Be sure to check with the local consulate to determine whether the consulate is only offering emergency appointments and services, is in a phased re-opening, or has resumed regular services.
In some locations, even when appointments are cancelled or are extremely delayed, visa applicants can still request expedited or emergency appointments for particularly urgent circumstances (usually involving urgent medical matters, life-or-death situations, and urgent unexpected business needs). As each consulate applies policies differently, please check with the local consulate for further action steps.
Arrival in the US
For those able to travel to the United States, please note that the US Center for Disease Control (CDC) requires a NEGATIVE test result for COVID-19 within 3 days of your flight to the US.
At this time, travelers are not required to be full vaccinated for COVID-19, but local areas may require international travelers to quarantine upon arrival or to demonstrate a NEGATIVE test result for COVID-19 within a set number of days after arrival. Please check with local authorities to determine what your destination requires.