Suspension of Visa Interview Waivers Could Cause Business Disruptions

In-person interviews for all visa applicants may add to wait times

By Allen Smith, J.D. Feb 3, 2017
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Global businesses will be challenged by a suspension of the Visa Interview Waiver Program. Foreign nationals coming into the country will have to have face-to-face interviews at consular offices. The suspension of this program was unaffected by a 9th U.S. Circuit Court of Appeals decision on Feb. 9 upholding a block of the travel ban on individuals from seven nations. Citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen may enter the United States after the appeals court upheld a lower court judge's temporary restraining order blocking the travel ban portion of the president's executive order. 

Three provisions of the executive order were blocked: the 90-day suspension of entry of individuals from seven nations, the 120-day suspension of refugees and the indefinite suspension of entry of all Syrian refugees. The executive order's suspension of the Visa Interview Waiver Program was left intact. 

The Jan. 27 order may lead to visas to the United States taking a few extra days to several weeks longer to obtain. This will result in more disruptions to business continuity, legal experts say, in addition to the ones resulting from the travel ban.

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The Visa Interview Waiver Program allows frequent visitors to the U.S. to skip in-person interviews at the U.S. consular office when they need to renew travel visas. It is not to be confused with the Visa Waiver Program, which remains in place with some changes. The Visa Waiver Program allows citizens of 38 countries to travel to the United States without a visa for tourism or business for up to 90 days.

The U.S. State Department created the Visa Interview Waiver Program so that visa applicants would not have to attend time-consuming and logistically complicated in-person visa interviews if they were applying to renew visas, according to Matthew Dunn, an attorney with Kramer Levin in New York City. He added that the Trump administration sees this program as a weakness in the screening of foreign nationals and a vulnerability to the United States' national security.

[SHRM members-only how-to guide: How to Sponsor an Individual for an H-1B Visa]

Longer Wait Times

Currently, visa wait times at most embassies are one to two weeks, said Roger Tsai, an attorney with Holland & Hart in Salt Lake City. Based on this new executive order, those wait times could dramatically increase. However, one unintended result of the suspension of the Visa Interview Waiver Program is that questioning may become superficial to speed up the interview process, he predicted.

As to how long the delays will be, it's really hard to predict—but they will be substantial, said Jeffrey Margolis, an attorney with the Margolis Law Firm in New York City. The backlogs will represent "a real hardship" for global workers "who need to keep to very tight business schedules."

The suspension of the Visa Interview Waiver Program will likely pose a "significant inconvenience for a lot of individuals and their employers" and delays for all visa applicants, agreed Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla.

Focus on Optics

The immediate suspension of the Visa Interview Waiver Program is arguably more for appearances than security, according to Kathleen Campbell Walker, an attorney with Dykema in El Paso, Texas.

Walker said the suspension of the Visa Interview Waiver Program will lead to consulates interviewing:

  • Children under 14 and applicants over 79 years of age.
  • Applicants who received a nonimmigrant visa in the same category in the past 12 months at the consular post of the applicant's usual residence, even though the person has no indication of visa ineligibility or noncompliance with U.S. laws.
  • Individuals who warrant a waiver of the in-person interview due to national interest or unusual circumstances.

"The question is how much faith we put in an in-person interview to determine a threat of terrorism," Walker said.

Experience Matters

Money for more consular workers is not in the fiscal year budget, noted Mary Pivec, an attorney with Pivec & Associates in Woodbridge, Va.

The Department of State has insufficient resources at present to conduct timely interviews of all these additional applicants, Walker agreed. In addition, she said, tapping into the Consular Fellows Program of the State Department for resources, as the executive order suggests, "is a Band-Aid, and a very inadequate one at that." Foreign service consular fellows serve in U.S. embassies and consulates alongside foreign service officers, adjudicating visas for foreign nationals.

"With consular matters, a large staff of visa officers is great, but the real key is to have knowledgeable, experienced officers that can look at a visa application and understand the unique circumstances of each individual applicant—and that takes time," said Stephen Hader, an attorney with Moore & Van Allen in Charlotte, N.C. "Adjudication of U.S. visas—both immigrant and nonimmigrant—is not always straightforward. There are dozens of different categories of visas, each with their own set of rules and nuances. An officer needs to be very familiar with those rules for each different type of visa in order to be able to efficiently and effectively evaluate an applicant's request."

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