AILA Roundtable with State Department Representatives: Applying for Visas as Third Country Nationals, Interview Waivers, PPP E-2 Recipients, Expedites for Afghan Nationals, and More!

We kick off the Thanksgiving week with some exciting news.

Recently, the American Immigration Lawyers Association (AILA) met with representatives from the Department of State to address some issues of concern relating to several different immigration topics.

We provide a summary of the questions asked and responses from the Department of State down below that was part of a recent roundtable with representatives from Consular Affairs.

Nonimmigrant and Immigrant Visa Applications from Third Country Nationals

Representatives reminded nonimmigrant visa applicants, including students, that they can apply for their visas at any embassy or consulate where they are physically present and obtain a visa appointment.

Additionally, immigrant visa applicants can request to transfer their case to another embassy or consulate if they are unable to travel to the post where their case is assigned.

As to the possibility for virtual visa interviews, the State Department has said immigrant visa applicants are required to appear in person before a consular officer to provide fingerprints, therefore video interviews would be of limited utility.

Interview Waivers

AILA informed the State Department that it appears that some appointment scheduling systems incorrectly identify applicants that are clearly not eligible for interview waivers as eligible and invite them to send in their passports for visa issuance.

In these instances, once the passport is submitted to the post, it is determined that the applicant is not eligible for an interview waiver, the applicant has to be contacted, their passport has to be returned, and they have to then schedule an in-person interview appointment.

The State Department has said it is not aware of this issue happening at posts and recommended that those experiencing issues with applications submitted via interview waiver processes should contact the relevant post for information.

E-2 Treaty Investor Visas

Question: 9 FAM 402.9-6(A)(a)(4) informs officers that one of the determinations in evaluating E-2 Treaty Investor applications is that the: “Enterprise is a real and operating commercial enterprise,” and is then referred to 9 FAM 402.9-6(C) for further discussion.

The first sentence of 9 FAM 402.9-6(C) states: “The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity.” The third sentence of 9 FAM 402.9-6(C) continues the description of the enterprise to state, “It cannot be a paper organization or an idle speculative investment…”Especially in the context of start-up businesses, defining these terms will provide greater clarity and guidance to E-2 visa applicants.

Please confirm: Are the words “operating” at 402.9-6(A)(a)(4) and “active” at 402.9-6(C) used interchangeably?

Answer: Almost. The term “active” at 402.9-6(C) was used to ensure that new enterprises that had not yet begun producing services or commodities, but which were actively taking steps to become operational, could also provide a basis for E visa issuance.

Question: In defining a real and active enterprise in the above FAM provision, is the term “real” (first sentence) used as the opposite of “paper” (third sentence); and the term “active” (first sentence) used as the opposite of “idle” (third sentence)?

Answer: All of these terms are intended to make clear that a qualifying E enterprise must be a commercial or entrepreneurial enterprise that produces services or commodities

Recipients of Paycheck Protection Program (PPP) Loans

Question: U.S. companies were eligible to apply for PPP loans during the pandemic. Initial guidance suggesting that foreign-owned businesses were not eligible for PPP funds was quickly corrected, making it clear that foreign-owned entities in the U.S. could qualify for PPP loans.

In many ways, meeting the PPP loan forgiveness criteria demonstrates that a company is real, active, and more than marginal. However, AILA members reported that some E visa applicants are being denied at least in part due to a company’s acceptance of a PPP loan, with the implication being that such acceptance equates to marginality of the U.S. business.

Has any guidance been provided to posts regarding a company’s acceptance and use of PPP loans and its potential impact on E visa application adjudications?

Answer: The State Department has said that it has not issued universal guidance to U.S. embassies and consulates on the eligibility of E visa applicants whose businesses received PPP loans. The State Department has said the receipt of a PPP loan cannot be the sole factor in determining marginality.

However, consular officials could consider it, in conjunction with other relevant factors relating to the company’s present and future capacity to generate income (marginality).

B visas for Entertainers and Artists

AILA has reported that some applicants are being refused B visas for entertainers and artists and told by Consular officers that the performer should apply for a P visa based on the language in the Foreign Affairs Manual, leaving them to assume they can only apply for a P visa.

The Department has said it will consider revising the FAM language to avoid suggesting that performers are required to apply for P visas or precluded from applying for other types of visas.

Immigrant Intent and Nonimmigrant Visa Refusals

Recently, certain nonimmigrant visa applicants have been refused a visa, because they had either an I-130 immigrant visa petition (spouse/child of US citizen), or Diversity Visa Lottery application pending, and therefore were not eligible for an NIV (INA214(b)).

These applicants have been told to wait for immigrant visa issuance to enter the United States.

AILA pointed out that with respect to pending I-130 petitions, this is inconsistent with 9 FAM 402.2-4(B)(4), which states: “An applicant spouse or child, including an adopted applicant child, of a U.S. citizen or noncitizen resident may be classified as a nonimmigrant B-2 visitor if the purpose of travel is to accompany or follow to join the spouse or parent for a temporary visit.”

AILA has suggested that guidance should be provided making clear that having either an I-130 petition or a Diversity Visa lottery application pending, in and of itself, is not demonstrative of immigrant intent as a sufficient basis to refuse a visitor visa.

The State Department has confirmed that the pendency of an immigration petition, by itself, is not dispositive of eligibility for a nonimmigrant visa; however, a refusal under INA 214(b) indicates the applicant did not establish eligibility for the visa category being applied for or did not overcome the presumption of immigrant intent.

The burden of proof is on the applicant to demonstrate their eligibility, and officials must evaluate the application holistically.

Changes to Information on Forms DS-160 and DS-3035 After Submission

With respect to changes to information after the DS-160 has been submitted, the State Department has clarified that the best way to alert posts of changes is to bring a corrected DS-160 to the appointment and inform consular staff upon arrival.

Urgent Business-Related Travel Matters

Question: To help facilitate legitimate business travel for foreign national employees who require visa services abroad, are there other mechanisms for U.S. companies, aside from contacting post, to address urgent business-related travel matters?

Answer: Our posts’ websites are the best source to seek guidance on urgent business-related travel. Each post has a process for applicants with urgent travel to request an expedited appointment.

While the process varies somewhat from post to post, generally, the applicant needs to make an appointment for the first date available and then submit a request through the Embassy or Consulate’s online scheduling system demonstrating an urgent business or humanitarian need for an earlier appointment date. The State Department recommends checking the Embassy or Consulate website for specific details about how to schedule an expedited appointment at the post where you wish to apply.

U & T Visas

AILA reports that Ciudad Juarez (CDJ) is requiring waivers of inadmissibility for individuals applying for immigrant visas (IVs) as qualifying family members of U-1 nonimmigrants through the I-929 process, contrary to the law.

It has proposed revising the FAM to provide clarification on IV processing for I-929 beneficiaries.

The State Department said it is not aware that this is happening in Ciudad Juarez and said that those experiencing these issues, or any other U visa processing issue, should contact the relevant post for more information on their particular case.

Afghan Special Immigrant Visas

AILA reports concerns that posts are not considering expedited processing requests for IV applicants from Afghanistan, despite comprehensive and compelling circumstances.

The State Department has confirmed that Afghan Special Immigrant Visas (SIVs) are prioritized for interview scheduling worldwide, however, COVID-19 related limitations might cause delays.

For non-SIV Afghan Immigrant Visa (IV) cases, applicants may request expedited interviews based on the specific facts that apply to their case. Such requests are decided on a case-by-case basis with consideration of their specific circumstances and the available capacity at post.

Question: What can members do when dangerous conditions warrant expedient processing that will enable the applicant to reunite with family in the U.S.?

Answer: Options for obtaining travel authorization will depend on an individual’s specific situation. An individual that is eligible to be scheduled for an immigrant visa interview may contact the nearest immigrant visa processing U.S. embassy or consulate they are able to travel to and request an expedited appointment. Information on how to request an expedited appointment will be available on the embassy’s website.

Question: If an applicant cannot provide requested evidence because they have credible fear for their safety, would DOS consider client circumstances by temporarily waiving that requirement and accepting an explanation or an alternative document instead?

Answer: The Department is aware that document availability is uncertain in Afghanistan and that procedures for obtaining government documents change with great frequency. Based on such assessments, a consular officer may determine that a document is unobtainable or unreliable in accordance with 9 FAM 504.4-4(F) and accept secondary evidence or substitute documentation.

Question: Could DOS share its progress on the reunification program for those separated from immediate family during the evacuation?

Answer: The Office of the Coordinator for Afghan Relocation Efforts (CARE) leads the intergovernmental effort to relocate and resettle our Afghan allies, including for eligible individuals that have been separated from their immediate family members.

To read the complete roundtable discussion, please click here.

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