Many foreign national employees who leave the U.S. are getting stuck abroad due to understaffed or closed consulates, and the problem is worsening due to the war in Ukraine.
War's Impact on Consulates
The Ukraine war could affect the processing times at consulates closest to Ukraine and Russia, said Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla. These consulates will have to process additional cases from affected areas, she said.
"Everyone needs to be prepared for a squeeze on consulates in Europe," said Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan. Consulates in Poland, Moldova and the U.K. are overwhelmed, she said.
"One cannot underestimate the impact that war conditions have by creating uncertainty and confusion when it comes to planning," said David Grunblatt, an attorney with Fragomen in New York City.
A Problem That Preceded the War
Even before the war, foreign national employees were getting stranded overseas if they did not qualify for a visa interview waiver, Borovska said.
Those with approved positions who don't have a visa on their passport must go to a consulate abroad after they leave the U.S. in order to return.
As those with visas in their passports are boarding planes to return, they sometimes are stopped and told there's a problem with their documents. Then they must visit consulates for a 221g appointment.
"The Department of State clearly is trying to come up with solutions, such as allowing more employment-based visa applications, such as H-1B, to be adjudicated without in-person appointment through a drop-box process," Mdivani said. "We see progress in places such as Chennai, [India], where DOL [Department of Labor] reduced appointment wait time to 120 days for visitor visas and 60 for all others, but not in Mumbai, [India], where the wait for an appointment is 248 days or Vancouver, [Canada], at 420 days."
Mdivani is advising foreign nationals to not travel abroad, if it can be avoided. "In some categories, such as if the employee is directed to schedule a 221g appointment, there are simply no appointments available at some consulates."
"Many consulates continue to have a shortage of available appointments for routine visa services, so employees can still get stuck overseas if there are no appointments available," Borovska said.
"Some consulates don't have appointments available for many months, typically consulates in large cities that generally handle more visa requests," she noted. "This constantly changes and varies from post to post because of consular capacity and demand adjustments." Borovska said that areas that have experienced significant delays during the pandemic include consulates in Brazil, Canada, China, France, India and the U.K.
"Employers may need to be strategic and flexible," said Carl Risch, an attorney with Mayer Brown in Washington, D.C., and a former assistant secretary of state for consular affairs. "For petition-based visa applicants, this could mean applying outside their countries of residence."
He added, "It could also mean applying for an employment-based visa, such as a multinational transferee visa, to take advantage of shorter processing times or interview waiver policies. This could reduce an applicant's processing time from years to days."
Consulates around the world continue to deal with extreme shortages of consular officers due to COVID-19, said Teri Simmons, an attorney with Arnall Golden Gregory in Atlanta. "This has resulted in extraordinary backlogs on adjudication of new E visa applications filed by investors in the U.S., as well as delays in consular processing."
She said that consulates can close and open without notice, often canceling appointments suddenly. Employers who are hiring people outside of the U.S. are having to wait a long time for those employees to arrive in the country start work.
"The problem has eased somewhat since the height of the pandemic but has not improved markedly," she said. "The U.S. is suffering through a shortage of skilled workers and professionals, and the current backlogs in visa processing both in the U.S. and at U.S. consulates abroad are detrimental to the U.S. economy."
Visa Interview Waiver
While the State Department has introduced a more liberal policy with its interview waivers, "implementation unfortunately is quite slow," Grunblatt said.
The expanded visa interview waiver applies to a variety of visa types, including the most common work visas H-1B, L and O and their dependents, Borovska said. "Notably, the visa interview waiver does not apply to E visas, so E-1 treaty traders, E-2 treaty investors and E- Australian professionals still need an in-person interview in most cases, unless the consulate is willing to waive the interview in its discretion," she said. "This includes supervisory/executive and essential employees in E visa status."
Individuals renewing any visa within 48 months of expiration also are eligible for interview waivers. So, employees who previously held visas that have expired within 48 months can travel abroad to renew their visas without an appointment. "Even then, they should plan for delays, because the consulate has discretion to require an in-person interview," Borovska said.
"I have also seen delays in being able to return to the U.S. due to a positive COVID-19 test," Borovska added. "The U.S. government still requires a negative COVID-19 test taken before traveling to the U.S. If an individual tests positive, they will have to quarantine for the required period of time before returning. I have seen several cases in which the employee tested positive before returning to the U.S. and had to wait abroad until being able to return, despite having a valid visa."
Although an expedited appointment at consulates is possible for emergencies, the criteria for who is facing an emergency can be challenging to meet, according to Mdivani.
Working Remotely Abroad
If stranded abroad, employees may choose to work there remotely.
"Almost everyone who gets stuck does," Mdivani said. "Depending on where and for how long, it creates potential employment authorization, appropriate visa, local taxation and potentially double taxation issues," she said.
Involve international tax experts to address the tax issues, she recommended.
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