Visa Processing Delays Expected into Next Year

​Understaffed and closed U.S. consulates around the globe are resulting in extensive visa delays for foreign workers trying to work in the U.S.—delays that could last well into 2022. Visa workarounds, though risky, can succeed but don't always pan out, legal experts say.

"Consular sections around the world are facing unprecedented operational challenges due to the COVID-19 pandemic," said Carl Risch, an attorney with Mayer Brown in Washington, D.C.

He noted that foreign workers in 33 countries are restricted from entering the U.S., though many of these employees can qualify for national-interest exceptions.

Reviewing these national-interest exception requests takes time and consumes resources that could be spent on other tasks, including processing visas for travelers exempt from the restrictions, he said.

"As a result, it can take weeks or months for an exception request to be approved in a country covered by the ban. We are now seeing visa appointment availability in some countries stretching into mid-2022."

The criteria for a national-interest exception are limited, said Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla. Currently, work visas are typically only able to qualify for a national-interest exception if the applicants can show that they will provide vital support or executive direction for critical infrastructure or significant economic activity in the United States, she said.

"These are not issues that affect workers who are already in the U.S. in lawful visa status," Borovska added.

Restricted 33 Countries

The 33 restricted countries are:

• Brazil.
  
• China.
• Countries in the Schengen area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and Switzerland).
• India.
• Iran.
• Ireland.
• South Africa.
• United Kingdom.

Entry into the United States is suspended for all noncitizens who were present in any of the 33 countries during the 14-day period preceding their attempted entry into the U.S.

There are limited exclusions from the restrictions, Borovska said. For example, spouses of U.S. citizens and parents of minor U.S. children are exempt. Lawful permanent residents (green card holders) of the U.S. and U.S. citizens also are exempt.

"Some short business trips are permissible on temporary business visas, which many employees already have in their passports," Risch said.

Travel to a Third Country

If workers don't want to wait for a national-interest exception, they can try traveling through a third country for 14 days. "There are only a very few third-country options around the world where people can reliably go and then be able to enter the U.S.," said Leon Rodriguez, an attorney with Seyfarth in Washington, D.C. "Mexico is the one about which we hear the most often."

Borovska explained that "if the individual already holds a visa stamp or other authorization to travel, such as an advance parole document, they can travel to a third country and stay there for 14 days." The individual should make sure he or she can enter the third country, as some nations have their own visa requirements independent from U.S. visa mandates, she noted.

Other examples of countries where clients routinely go for 14 days include Turkey, the UAE [United Arab Emirates], Panama and Armenia, she said. "But there are many other countries that are not subject to the proclamations [restricting entry] and can potentially be visited for the 14-day period as long as they would admit the individual per their own entry limitations."

Some countries, such as Canada, still have COVID-19 restrictions in place, even if they don't have restrictive visa requirements. "This is an added complication that sometimes requires advice both with respect to U.S. immigration law and foreign visa laws," Borovska said.

"Earlier in the worldwide lockdown, Turkey was a heavily used country, but then Turkey went into lockdown itself and we saw people trying to leave in a hurry before those borders closed," said Jet Stigter, an attorney with Duane Morris in San Francisco.

But many Indian nationals have made successful entry into the U.S. from such countries as Turkey and Russia, said Nandini Nair, an attorney with Greenspoon Marder at Edison, N.J.

Employers should be aware that traveling through a restricted country, even without leaving the airport, can result in the U.S. ban prohibiting an employee's onward travel, thus stranding an employee in a third country, Risch said.

Using an Alternate Consulate

The opportunity to use an alternate consulate outside one's home country has "narrowed tremendously," Stigter cautioned. "The U.S. consulates and embassies in most countries have instituted the rule that unless one is a citizen or holds long-term residence in the country, they will not accept the visa application."

Nair added, "Consulate operations throughout the world are at a limited capacity, if any capacity at all, thus consulate shopping has become a futile exercise."

If foreign nationals are able to secure a consulate outside of the home country, they must be prepared to follow that specific country's entry requirements, including providing proof of vaccination, a negative COVID-19 test and quarantine requirements, she said. "It is important to stay vigilant in regard to last-minute cancellations of visa appointments due to unforeseen circumstances."

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

Remote Work

One other option would be for foreign employees to work for a U.S. company remotely, noted Diane Hernandez, an attorney with Hall Estill in Denver.

"The foreign country where the employee is located might have rules relating to foreign companies that employ workers there—for example, tax, corporate, or labor and employment rules," Borovska said. "It is important for companies that plan to employ remote workers in another country to understand their potential obligations in that respect."

For example, if an employer needs to fire a worker in a foreign country, specific labor laws may subject the U.S. employer to certain obligations, she explained. Employers in this situation should consult with a specialist in the foreign country, Borovska said.