EAH Immigration Blog

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Current State of Visa Backlog and Processing Delays; Recommendations to Eliminate Pandemic-Related Consular Backlogs

Today, individuals, families, and U.S. businesses have experienced crisis-level immigrant and nonimmigrant visa backlogs and visa processing delays at the Department of State (DOS). These backlogs and delays have had significant consequences. Families have been separated. Individuals have lost their chance at the American Dream. U.S. businesses have been unable to bring in and bring back foreign talent to fill seasonal and permanent positions, thereby affecting our nation’s economic recovery from the COVID-19 pandemic. DOS itself also has suffered. Because U.S. embassies and consulates around the world were shut down due to the pandemic, DOS encountered significant financial difficulties as a result of a decrease in DOS’s fee revenue, coupled with an eight-fold increase in the consular immigrant visa backlog.

The following is excerpted and condensed from a policy brief prepared by the American Immigration Lawyers Association (AILA) to offer sensible policies and procedures that DOS can adopt to ensure the continued efficient function of DOS beyond the global pandemic. We encourage businesses and families to discuss these ideas with their members of Congress.

Here are the numbers: There has been a sharp reduction in the issuance of immigrant visas (IVs) and nonimmigrant visas (NIVs). The average number of IVs issued per month during the pandemic is just over 11,000, a far cry from the pre-pandemic average of close to 39,000. In 2019, the monthly average of immigrant visa cases pending at the National Visa Center (NVC) waiting for an interview was 60,866. Two years later, those numbers have skyrocketed, with the NVC reporting 506,221 immigrant visa applications awaiting interviews in June 2021. As the NVC confirmed in February 2021, it continues to schedule cases only for posts that can conduct interviews. While things appear to be trending in the right direction, the restrictions brought on by the pandemic have created an enormous IV backlog that continues to rise. Nonimmigrant visa issuance also fell sharply during this time with monthly averages for issuances falling from over 721,305 to about 144,224 per month.

Resume stateside processing of visa renewals.

DOS has the authority to renew nonimmigrant visas from within the United States, and did so routinely for nondiplomatic C, E, H, I, L, O, and P visa categories until July 16, 2004. In suspending the stateside reissuance policy for nondiplomatic visa categories in 2004, DOS cited a new law requiring biometric identifiers as part of the visa issuance process and its inability to capture biometrics in the U.S. as the motivation for its decision. Seventeen years later, the capture of biometrics should no longer be a problem. At a time when the immigrant visa backlog is more than eight times the normal backlog and encompasses more than half million documentarily qualified applications, reinstituting U.S. nonimmigrant visa reissuance for the categories above would be a tremendous step in allowing consular posts to focus on reducing the backlog and other key priorities.

Automatically extend visas that have expired during the pandemic by 24 months.

DOS should further consider providing 24-month automatic extensions for nonimmigrant visa holders who were either stranded abroad or required to return home for urgent business or family emergencies during the pandemic, provided that they have a valid I-797 notice from USCIS or a valid DS-2019 or I-20.

Maximize staffing on IV processing at consular posts.

Filling long-standing vacancies in DOS at the ambassadorial, Deputy Assistant Secretary (DAS), and Assistant Secretary (AS) levels to restore proper management and operations at both agencies is necessary to successfully tackle the pandemic-related backlogs. In addition to staffing leadership positions, it will be necessary to increase staffing at consular posts and, to a lesser extent, at the Visa Office. DOS should use all proven historical methods to quickly increase consular staffing, including deputizing staff to act as consular officers and calling back experienced former consular officers and other DOS officials. DOS should also recruit recent graduates and consider offering, over time, to forgive student debt in exchange for their service.

Revise regulations to allow virtual immigrant and nonimmigrant visa interviews.

DOS must quickly finalize its proposal allowing the waiver of certain in-person appearance and oath requirements for immigrant visa applicants. DOS should revise current regulations to authorize virtual interviews for initial nonimmigrant visa applicants to aid in tackling the backlog while minimizing physical contact, allowing staff from anywhere in the world to interview applicants safely. Security concerns can still be addressed since the officer will be able to see the applicant and compare the applicant to the passport picture. Higher-risk cases could continue to require in-person interviews. [See below:  DOS has extended the waiver of certain in-person interviews.]

Leverage U.S.-based consular officers to adjudicate visa applications.

In addition to in-country foreign service officers (FSOs), new FSOs, deputized civil servants, and retirees could be trained as supplemental personnel to engage in remote visa interviews and handle other aspects of the visa issuance process from within the United States, resulting in reduced appointment wait times and avoiding space constraints at consular posts abroad. This would be an inexpensive and faster way to eliminate the backlog, as lack of space to physically distance applicants and personnel at consular posts cannot be quickly addressed.

Leverage Interagency Coordination with U.S. Customs and Border Protection (CBP).

Admit all U.S. lawful permanent residents (LPRs) returning to the United States from abroad without conducting an abandonment analysis if they last departed the United States on or after December 31, 2019, or who had a valid reentry permit on that date and discourage SB-1 returning resident visa applications at consular posts. Current regulations impose a presumption of abandonment for LPRs who have been outside the United States for more than one year. Adopting a policy allowing all LPRs to be admitted without a CBP abandonment analysis or the need for an SB-1 returning resident visa application would avoid unnecessary consular applications.

Automatically extend immigrant visas from six months to 18 months.

By law, immigrant visas issued at consular posts are typically valid for up to six months; however, there are circumstances and procedures by which these visas can be reissued. The current scheme allows for the reissuance of an immigrant visa that was unable to be used for reasons beyond the applicant’s control and for which the applicant was not responsible, if reissued within the same fiscal year. In similar circumstances, but where the initial immigrant visa was issued in a prior fiscal year, DOS recaptures the visa number to the year it was issued and requires the applicant to reapply for a new visa and pay a new fee. This makes no sense, even though this policy is clearly aligned with the law. As a practical matter, requiring immigrant visa holders whose visas expired in FY2020 due to the pandemic to reapply for new immigrant visas will add to the consular burdens. To avoid the administrative burden of having to reissue those visas it would be prudent to include, among the Administration’s COVID-relief priorities, a legislative provision that would extend, by operation of law, the validity of all immigrant visas issued on or after June 30, 2019, through June 30, 2022. This action will prevent unnecessary bureaucratic processing at consular posts and free up consular officers to focus on eliminating the immigrant visa backlog and resuming routine nonimmigrant visa processing.

Recapture and avoid the loss of unallocated visas.

Given the magnitude of the IV backlog and continued procedural hurdles, it is unlikely that DOS will be able to process all available IVs before the end of FY2021. As such, it is likely that hundreds of thousands of IVs may be permanently lost, even though many individuals have been waiting years for an IV. In FY2020, over 100,000 family-based and diversity preference category visas went unused. It is imperative that DOS administratively recapture those lost visas. Moreover, looking forward, DOS must take active steps to ensure that all visa numbers available for FY2021 are fully allocated and do not get wasted simply due to processing delays. Congress should also take action to recapture those visas unused during the pandemic in addition to the approximately 200,000 visas lost years past. Finally, Congress should enact a statutory fix to ensure that unused visas are properly reallocated moving forward to realize its intent that all available IVs are properly allocated.

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