DOS Publishes Q&A Responses to Common Questions Regarding Phased Reopening of Consulates/Embassies Worldwide, NIE Procedures, Visa Cancellations, Expired Immigrant Visas, and More…

Welcome back to Visalaywerblog! We kick off the start of a brand new week with the release of a very interesting Question and Answer session recently published by the Department of State.

This Question and Answer session took place on December 11, 2020, by and between the Department of State and the American Immigration Lawyers Association (AILA)’s Department Liaison Committee.

The Question and Answer session addressed a broad range of visa-related questions including burning questions regarding the phased reopening of Consulates and Embassies worldwide, national interest exception procedures, expansion of visa interview waivers, information regarding visa cancellations, MRV validity, the treatment of IV applications with approved I-601A Provisional Waivers, expired immigrant visas, pandemic related delays in obtaining documents for Consular related requests, and much more.

We have rounded up the most interesting questions and responses in this post. To read the government’s complete responses to questions asked, please click here.

Phased Reopening of Routine Visa Services

Q: It is AILA’s understanding that consular posts will reopen in phases based on the following Diplomacy Strong Framework included in Appendix A.

Please confirm:

Are the phases and priorities listed in Appendix A still accurate, or have there been any modifications to the Diplomacy Strong framework?
Are the phases in Diplomacy Strong standard across posts or are they merely guidelines within which posts have some flexibility in terms of setting priorities?
Please confirm whether a post will always be at the same phase for both IV and NIV processing, or whether it may be at a certain phase for IV processing and a different phase for NIV processing (e.g., If Sydney is at phase 3 for IV services, must it also be at phase 3 for NIV services?).
While we see references to Diplomacy Strong on a variety of post websites, it is not clear what phase the post is operating under. Would DOS advise posts to share their current operating phase on their websites in order to better inform the public of what they are prioritizing?

A: Although phased reopening of routine visa services originally corresponded with phases of Diplomacy Strong, posts were instructed on November 12 that they are no longer obligated to be in a specific Diplomacy Strong phase before providing additional categories of visa services.

Posts will determine the volume of visa services that they can provide while prioritizing the health and safety of consular staff and applicants and provide that volume to prioritized categories of visa services.

Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens including intercountry adoptions (consistent with Presidential Proclamation 10014) fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications.

Posts processing non-immigrant visa applications will continue to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students (F-1, M-1, and certain J-1) and temporary employment visas (consistent with Presidential Proclamation 10052).

We expect the volume and type of visa cases each post will process to depend on local circumstances. An embassy or consulate will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.

Q: Have any posts resumed routine immigrant visa services?

A: Yes, some of our missions have phased in processing some routine immigrant visa cases, as post-specific conditions permit. Three (3) Immigrant Visa Units are in the process of resuming routine visa services, based on the availability of their resources; and 89 Immigrant Visa Units have made substantial progress.

Q: Does CA plan to resume routine immigrant visa services at any posts in the second quarter of the government’s fiscal year?

A: The resumption of routine visa services, prioritized after services to U.S. citizens, will occur on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities. We expect the volume and type of visa cases each post will process to depend on local circumstances. An embassy or consulate will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.

Expansion of Visa Interview Waivers

Q: AILA acknowledges and appreciates the recent reinstitution of visa interview waivers at posts to allow for “contactless” visa issuance.

Would State consider the COVID-19 pandemic “unusual or emergent circumstance” under INA 222(h)(1)(C) warranting expanded use of the visa interview waiver program, to add additional visa classifications and/or visas which expired within a broader window of time?

Can any aspects of these visa issuances be supported by stateside personnel?

A: In August of 2020 the Department of State, with concurrence from the Department of Homeland Security, temporarily provided for consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification within 24 months of the expiration of their prior visa, rather than just the 12 months renewal period described in the INA. This policy is in effect until December 31, 2020.

Visa Cancellations

Q: Is there a unified departmental policy for rescheduling cancelled visa appointments or is this left to the discretion of each post?

Please also confirm:

If an appointment is/was cancelled, does the applicant effectively go “to the back of the queue” or is the applicant given priority to reschedule the interview at the earliest available date?

A: When GSS posts must cancel an interview, the applicant receives an automated notification and offered an opportunity to reschedule for the next available appointment slot. Posts, per Department guidance, make an effort to ensure that there is availability within a reasonable amount of time, but also operate an emergency appointment function that would facilitate an adjudication for applicants in urgent need of travel. The criteria and procedures to request an emergency appointment are outlined on GSS websites.

Q: Are cancelled appointments automatically rescheduled by post or must applicants reschedule the interview themselves?

A: Applicants typically reschedule themselves to ensure that they are able to choose a time and day that suits their schedule. Applicants may also receive additional assistance by contacting a call center operated by a GSS vendor.

Q: If there is no unified departmental policy, how do DOS’ appointment scheduling vendors address these rescheduling issues? Is this information published in a publicly available location?

A: All GSS posts follow the same basic procedure. All information related to the visa process is published on websites specific to each post that are accessible for all visa applicants. These websites include notifications of publicly-announced policies and guidance

MRV Fees

Q: AILA understands that the MRV fee generally remains valid for up to one year for an application in the country where it was paid, and that this has now been extended for posts that use AIS until December 2021 in light of the COVID-based cancellations.

Unlike posts that use AIS, where appointments can be rescheduled an unlimited number of times, post that use U.S. Travel Docs only allow an applicant to reschedule a visa appointment three times.

Will visa appointment cancellations by State (and any subsequent reschedules made by the applicant due to COVID-19) count toward the three reschedules before the MRV fee must be paid a second time?

A: We are working diligently to restore all routine visa operations as quickly and safely as possible. In the meantime, CA extended the validity of applicant payments (known as the MRV fee) until December 31, 2021, to allow all applicants who were unable to schedule a visa appointment as a result of the suspension of routine consular operations an opportunity to schedule and/or attend a visa appointment with the already paid fee.

For an applicant who has reached the cap on appointment cancellations/rescheduling, post will manually intervene to reschedule, and the applicant would not be required to pay the MRV fee again before December 31, 2021.

Treatment of IV Applications with Approved I-601A Provisional Waivers

Q: When posts reopen for resumption of routine visa services, will DOS prioritize applications for immigrant visa applicants in possession of an approved I-601A provisional waiver who departed the U.S. to attend an interview before routine visa processing was suspended and travel restrictions were imposed?

A: In general, posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens, including intercountry adoptions, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications. Posts will resume adjudicating all routine nonimmigrant and immigrant visa cases only when adequate resources are available, and it is safe to do so.

Q: Applicants report having difficulty obtaining supplemental documents requested during a visa interview, such as criminal record clearances for particular countries, because of COVID-19 related closures. These applicants are concerned that the delay will result in a denial if the documents cannot be produced within a year. Is DOS aware of these issues, and if so, what is the agency’s policy to deal with these COVID-19 related delays?

A: Consular officers may determine on a case-by-case basis whether a document is considered unobtainable using the guidance set forth in 9 FAM 504.4-4(F)

Presidential Proclamation 10052 H-1Bs resuming employment with same employer

Q: The August 12th guidance indicates that H-1Bs who are returning to resume employment with the same employer are eligible for a NIE. In making this determination, the consular officer is advised to refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”

Please confirm that this example was meant to be merely illustrative and that those who have yet to file for an extension of their valid H-1B status may be eligible for an NIE. Similarly, please confirm that someone with an approved amendment and/or extension of stay based upon a change of previously approved employment with the same employer would also be eligible for this exception.

A: Applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification would be covered by the exception. Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same Employer.” In addition, individuals who were inside the United States on the date the Proclamation went into effect are not subject to the Proclamation.

Q: It is AILA’s understanding that at certain posts, a scheduling vendor may be responsible for assessing potential eligibility based upon criteria provided by the post. Is that the case? If so, given that the list of national interest exceptions is non-exhaustive, to the 28 extent that an individual believes they qualify based for the exception based on compelling facts that do not fall within the specifically enumerated criteria, what is the best way to ensure that the request is reviewed by a consular officer rather than a scheduling vendor?

A: All requests for national interest exceptions are reviewed by a consular officer.

Presidential Proclamation (PP) 10014 Expired Immigrant Visas Due to COVID-19 Global Pandemic

Q: The PP 10014 suspension of entry by certain immigrants does not apply to individuals in possession of an immigrant visa (IV) on April 23, 2020. Other pandemic-related travel restrictions or risks associated with international travel may preclude travel to the U.S. before the visa expires. Will State issue a new visa to such persons if their IV expires?

A: The applicant should contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued the visa. The applicant does not need to file a new petition with USCIS but may need to submit a new application (DS-260) and pay another immigrant visa application processing fee. In addition, the applicant may need to submit new supporting documents, such as a new medical examination and police certificate. The applicant should be prepared to return the unused, expired visa and visa package (if applicable). Requests to reissue or replace visas are considered on a case-by-case basis, and all applicants are required to re-establish their eligibility; there is no guarantee that the applicant will receive a new visa.

Q: Pursuant to INA 221(c)(1) an immigrant visa can have a maximum validity of up to six months with some exceptions. INA 221(c)(3) authorizes replacement of an immigrant visa where the original visa was not used due to circumstances beyond the control of an immigrant provided that the individual remains eligible for an immigrant visa and the applicant pays a new application fee.

Please confirm: a. Does DOS still consider the COVID-19 global pandemic to be “circumstances beyond the control of an immigrant” such that a new immigrant visa can be issued upon payment of a new fee?

A: Yes, potentially, but requests to reissue or replace visas are considered on a case-by-case basis, and all applicants are required to re-establish their eligibility; there is no guarantee that the applicant will receive a new visa.

Q: Will DOS delegate to each consular post authority to create application processes for individuals whose immigrant visas expired during the health related travel restrictions? If so, is it anticipated that posts will provide on their website guidance defining its procedures for requesting replacement of an immigrant visa?

A: The guidance for requesting replacement of an immigrant visa is set forth here: https://travel.state.gov/content/travel/en/us-visas/immigrate/nationalvisa-center/immigrant-visas-processing-general-faqs.html#NQ Applicants should contact the Immigrant Visa Unit of the U.S. Embassy or Consulate that issued the visa.

Q: Assuming that replacement visas will be issued, will replacement of expired immigrant visas be prioritized over issuance of new immigrant visas?

A: Posts that process immigrant visa applications will prioritize Immediate Relative family members of U.S. citizens, including intercountry adoptions, fiancé(e)s of U.S. citizens, and certain Special Immigrant Visa applications, which may include the issuance of replacement visas for these visa categories

Q: Will determinations of continuing eligibility for an immigrant visa pursuant to INA 221(c)(3)(B) be limited to verification of previously submitted documents and examination of replacement documents, such as medical examinations that expired while waiting to travel to the U.S.? If not, what will be included in the scope of review?

A: Requests to reissue or replace visas are considered on a case-by-case basis, and all applicants are required to re-establish their eligibility for the visa. There is no guarantee that an applicant will receive a new visa.

Q: We understand that State has reaffirmed that visa foils can be reprinted where underlying documents have not expired. Given the current level of difficulty obtaining new documents from closed government offices, would State be willing to reprint visa foils if underlying documents (other than medical examinations) have expired, assuming that there are no indications of national security or law enforcement risks, or otherwise extend the validity period of these documents in order to be able to process these visas?

A: If a required document cannot be procured without causing the applicant or a family member actual hardship, other than normal delay or inconvenience, the consular officer may consider it unobtainable, and permit the applicant to submit other satisfactory evidence in lieu of such document or record, per 22 CFR 42.65(d).

Reconsideration of IVs denied after PP 10014 Suspension of Entry by Certain Immigrants expires or is terminated

Q: Do IV applications denied based on PP 10014 stay at post or are they returned to NVC?

A: IV cases that have been interviewed and denied based on PP 10014 stay at post.

Q: What is the anticipated process for reconsideration following termination of PP 10014?

A: If a case is only refused based on PP 10014; once the Proclamation is no longer in effect, consular officers may overcome the refusal. If any documents have expired, the applicant will be required to take action to submit new records such as a new medical as well as provide the passport if a case is otherwise able to be approved.

Q: Are these cases being held in a “pending demand” file for automatic approval after the proclamation’s restrictions end (and assuming their priority date remains current for final action)? There is no “automatic approval”; applicants whose cases were denied due to PP 10014 will need to be determined to be eligible for their visas after PP 10014 expires.

Q: Will these cases be automatically reinitiated by either NVC or post? If not, please confirm if there are any actions that attorneys or applicants will need to affirmatively take to prompt reconsideration.

A: No action will be required on the part of the applicant or attorneys.

Procedure for Requesting an Exception to PP 10014

Q: What is the procedure for requesting a National Interest Exception to PP 10014?

A: Applicants who are subject to PP 10014, but who believe they may qualify for a national interest exception or other exception, should follow the instructions on the nearest U.S. Embassy or Consulate’s website regarding procedures necessary to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception. While a visa applicant subject to one or more Proclamations might meet an exception, the applicant must first be approved for an emergency appointment request, and a final determination regarding visa eligibility will be made at the time of visa interview.

Q: Should documentation in support of an IV NIE be presented to the NVC or at the visa interview? Are consular officers required to accept documentation presented at a visa interview in support of a national interest exception request? If not, why not?

A: Applicants who believe they may qualify for a national interest exception should contact the nearest U.S. Embassy or Consulate to request an emergency appointment and should provide specific details as to why they believe they may qualify for an exception, which may include documentation in support of the request. Consular officers may request documentation in support of a national interest exception before, during, or after the visa interview, or otherwise accept documents at the interview, as needed.

Questions? If you would like to schedule a consultation, please text 619-569-1768 or call 619-819-9204.

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