Untangling the nonimmigrant visa backlogs from the pandemic

Tuesday 18 October 2022

Amanda S Brill
Brill Immigration, London

Over two years have passed since the start of the Covid-19 pandemic. The subsequent US embassy closures and travel bans mean that US immigration lawyers and their clients are still feeling the sting of visa interview availability. The State Department’s consular services derive much of their funding from US visa and passport fees: an amount estimated to be around $3.5bn a year pre-pandemic. The near-total closure of visa and passport services in 2020 and 2021 was estimated to cost $1.4bn annually which had been estimated by senior State Department official Ian Brownlee at a congressional committee in August 2020.[1] Add to this a recruitment freeze at the State Department that has only recently been lifted, and it is easier to buy tickets to a Bruce Springsteen concert than it is to secure a visa interview at some US consular posts. This has presented a unique and fruitful consular practice for lawyers, but it is not without its frustrations.

As the US consular posts began to reopen with limited services in July 2020, a convoluted system emerged whereby the practice of law became a practice of negotiating and begging to obtain a much-sought-after interview slot. For consular posts in countries subject to the various US Covid-19 travel bans (Schengen, South Africa, the UK and others), lawyers also had to demonstrate that the visa would be used for a purpose that was in the US national interest. How the ‘national interest’ was defined depended on which embassy was involved. Consequently, a bottleneck emerged with consular officers devoting their time to determining who was in the national interest before an interview slot was offered.

To alleviate backlogs, the State Department initiated ‘Waiver of Personal Appearance’ mail-in non-immigrant visa application services that apply to many categories of applicants.[2] In theory, an applicant couriers in their application and original passport and the visa stamp can be approved without the need for an in-person interview. In practice, the timing of processing applications in this manner can last several weeks – at one point, the US Embassy in Bogotá recommended allowing three months. During this processing period, the applicant is without their passport for travel, something that became increasingly difficult to navigate during the summer travel season. Before relinquishing the client’s passport in these circumstances, lawyers must seek up-to-date processing times and balance whether an in-person interview would be more beneficial for the client. In-person interviews, while more difficult to secure, ultimately process much more rapidly and work best for urgent travel needs.

It is not all bad news, however. Lawyers have seen improvements in visa interview availability and a recent announcement from the State Department that they have ‘doubled consular officer hiring this year from last year and newly trained staff are making their way overseas.’[3] Visa interviews at the US embassies in London, Paris and Mexico City, for example, can often be found for the next week, although usually only with much lawyer persistence in relentlessly checking the embassy interview calendar. Interviews can also still be expedited when timing is of the essence. Like all of us, US consular posts have contracted and expanded services throughout the pandemic. There has been a vast improvement since the height of the pandemic, and it is anticipated that improvements will continue globally.[4]

[1] Yeganeh Torbati and Dara Lind ‘Internal Memo Shows Trump Administration Expects Drastic Drop in Demand for U.S. Visas for Years to Come’, ProPublica, 14 August 2020 www.propublica.org/article/the-trump-administration-is-predicting-a-drastic-drop-in-demand-for-u-s-visas-for-years-to-come accessed 21 September 2022.

[2] Travel.State.Gov ‘Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas’ 23 December 2021 https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html accessed 21 September 2022.

[3] US Department of State: Consular Affairs Facebook page, www.facebook.com/travelgov, accessed 13 September 2022.

[4] Ibid.