On Jul 13 2022 by Maria M. Mihaylova
Update on COVID-19 Consular Operations: An Oxymoron
Over the past two years, we as a global society have had to adjust our lifestyles to help curb the spread of COVID-19 and its never-ending variants. We’ve put travel plans on hold, learned to work remotely, specifically in the field of immigration, and grown comfortable with ever-changing and unpredictable travel bans, vaccination, and testing requirements.
As immigration lawyers, we’ve had to manage the expectations of our clients on when they can visit their families again. We’ve learned to coordinate highly complex visa interview options and venue-shopped for previously unexplored locations to ensure that, in the extreme cases of business necessity or medical emergencies, foreign nationals were still able to travel.
In summer 2022, many things have again changed. We no longer have mandatory masking on planes. Most countries have lifted their testing requirements for inbound travel, including the United States. Travelers are eagerly making plans to make up for lost time. However, despite the many steps taken by US government agencies to improve our mobility and open borders for both business and tourism, foreign nationals and entrepreneurs still find themselves struggling with long visa processing times and general unavailability of appointments at US embassies and consular offices internationally. It appears that while USCIS and CDC are moving into a post-pandemic state, the Department of State and its foreign posts are very much still operating under pandemic conditions.
Why is that? On one hand, a major driving force behind the ongoing delays at embassies is the fact that consular posts have been unable to properly restaff. Both their nonimmigrant and immigrant visa units have lost officers after the Department of State began pulling out “non-essential” personnel at the beginning of the pandemic. On the other hand, while embassies shut down their operations and severely limited the processing of visa applications, the demand for visas from investors, businesses, and employees did not. This generated a substantial backlog of individuals waiting for visa appointments. Finally, the recent lifting of restrictions and testing requirements has reopened borders and created the perception that making it back to or generally into the United States is once again a streamlined and clear process.
Combined, these factors have now created a perfect storm for entrepreneurs, employers, and professionals alike. On the business side, companies are gearing up their projects and services, which requires them to hire qualified talent in time to deliver their projects successfully. Entrepreneurs are still investing in US opportunities and launching new businesses, thus finding themselves in need of being able to visit the US to manage their investments or set up operations. Employees are burned out, eager to visit their families, and take well-deserved time off. They will need visas to return to their employers.
Yet, larger embassies are still unable to process the demand for visas in a timely fashion. Wait times for appointments can be months long, leaving business ventures and investments at much higher risk. Even more egregiously, some US consulates have refused to even accept E-2 visa applications for nationals of the host country who have made substantial investments in the US.
Once-established posts that used to take a couple of months to process, for example, corporate E-visa registrations, H-1B renewals, or L-1 multinational transfers now take in excess of several months. According to Department of State (DOS) data, the US Embassy in London is currently taking about 90 days to schedule employment-based appointments, Paris takes 231 days; Madrid, 217; Sydney, 133; Nassau, 140; and Toronto, 231. In comparison, if the investor/employer/employee is willing to “shop around”, can travel to, convince a third country post to interview them, and can afford the additional associated costs, certain posts have been able to process their return to the US more quickly (e.g., according to the same DOS data, wait times in Frankfurt are 45 days, Mumbai, 45 days; Beijing, 3 days; Warsaw, 2 days; Rio de Janeiro, 2 days; and Oslo, 21 days).
Unfortunately, the forum-shopping is not a sustainable, long-term solution and still cannot solve some of the more complex situations that can arise in the field of immigration. For one, employees, investors, or their immigration attorneys should not be expected to play embassy roulette every time someone needs a visa. The published data is also not always reliable when making recommendations for posts to use as many times clients report very different appointment availability once they try to book an appointment.
And then, there are the situations where forum shopping is practically impossible, like in cases where an employee accidentally overstayed their admission period as granted by Customs and Border Protection, thus automatically voiding their existing visa. During COVID, USCIS was more open to entertaining nunc pro tunc requests for such filings and used to be more amenable to resolving a status issue, with the full understanding that borders were closed, flights were cancelled, and embassies were shut down.
Regrettably, since restrictions have been eased, the agency is no longer as accommodating. While in the past, USCIS accepted a wider range of COVID-related explanations for status violations and was more amenable to fixing such status defects at its discretion, it has now grown increasingly unwilling to step in unless the violation of status was completely outside of the control of the foreign national. Increasingly, nunc pro tunc requests are being either denied with the explanation that the individual must travel to correct their status issue or granted on the condition that the individual still travels and obtains a new visa. Such adjudications are still problematic as they no longer solve the immigration issue for employees or employers. Individuals whose visas were automatically voided because of an accidental overstay cannot obtain a new visa from a third country embassy. If they try to attend an interview in an embassy that is not in their home country, they will mandatorily be refused a visa, building further delays and hurdles to their US return.
So, how long will we have to continue navigating the consular operations minefield? With no clarity in sight, immigration practitioners and foreign nationals alike are in for another tense year. The system is in dire need of increased consular staffing and training, as well as application process improvements, like interview waiver programs and an increase in emergency appointment grants. Until then, however, we will have to continue playing embassy roulette and explore new posts to help clients facilitate business operations.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the July 13, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.