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U.S. Department of State Announces Waiver of In-Person Interview Requirement for Certain Temporary Visa Applicants

On December 23, 2021 the U.S. Department of State announced that it will waive in-person interviews through the end of 2022 for certain temporary employment nonimmigrant visa applicants who have an approved petition by USCIS.

This change is not only welcome; it is necessary.

Learn who and which visa types qualify for this interview waiver.

The current backlogs:

A day earlier, on December 22, 2021, Rollcall published an informative article titled “Limited operations at US consulates keep visa holders on edge.”  https://www.rollcall.com/2021/12/22/limited-operations-at-us-consulates-keep-visa-holders-on-edge/.  The article details the severe backlogs and difficulties to obtain visa appointments for nonimmigrant visas (NIV).  NIVs are temporary visas such as H-1, H-3, H-4, L, O, P, and Q, among others.  They are distinguished from immigrant visas (IV) that are for permanent residency.

The NIV interviews are visa appointments for employees of U.S. organizations that have already been determined by USCIS to have a qualifying need for the foreign national employee.  Typically, the employee is already lawfully in the U.S. maintaining status.  If that employee needs to leave the U.S. due to an emergency, work assignment, or even to see family, they cannot return without a valid visa.  In many cases, despite continuing to maintain status while in the U.S., the actual visa that allows them to re-enter from abroad if they leave is no longer valid.  If they leave, then, they can’t come back until they get the new visa.

The Rollcall article details that some consulates have a lag time of more than a year to get an appointment for an NIV, and quotes one respected immigration lawyer as saying, “Don’t travel unless you’re prepared to be working remotely for more than a year.”

The new waiver of in-person interviews:

The State Department announcement the next day is a critical step in U.S. economic recovery, given that the types of nonimmigrant visas involved are based on qualifying U.S. need.  The announcement waives in-person interviews for certain NIV applications through the end of 2022, and expands a previous in-person waiver for certain students, professors, and research scholars (F, M, and certain J visa applicants).  The F, M, and J in-person interview waiver is extended until the end of 2022 (with certain changes), and the waiver is expanded to include petition-based H-1, H-3, H-4, L, O, P, and Q visas.  Unfortunately, it does not include E or R visas, among others.

Requirements to qualify for the in-person interview waiver:

Applicants for an H-1, H-3, H-4, L, O, P, or Q visa must meet these conditions in order to request the in-person interview be waived:

  • Have an individual (not blanket) petition approved by USCIS, and
  • Were previously issued any type of visa, and never been refused a visa (unless the refusal was overcome or waived), and
  • Has no apparent ineligibility or potential ineligibility, and
  • Are applying in their country of nationality or residence (not a third country);

OR:

  • A first-time individual petition-based H-1, H-3, H-4, L, O, P, or Q who are:
    • Citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided:
    • There is no apparent or potential ineligibility, and
    • The applicant has previously travelled to the U.S. using the Electronic System for Travel Authorization (ESTA).

Fine print:

Note the in-person interview waiver is in the discretion of the consular officer, and so may be denied.  Also note the practice or procedure to request the waiver varies among the different consulates.  Some consulates may allow a written request for the waiver, in which case we recommend treating it similarly to a National Interest Exception (NIE) request under COVID insofar as preparing the request to show it is merited.  Others may simply review the application itself and decide whether an interview waiver will be offered, whether requested or not.  The consulates are in the process of establishing their procedures now.

For further assistance or questions about this announcement, please contact Barbara A. Marcouiller, Attorney.

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