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U.S. Department of State Issues Temporary Waiver of Some Personal Interview and Oath Requirements for Immigrant Visa Applicants Due to COVID-19

On December 13, 2021 the State Department (DOS) published a temporary final rule (TFR) titled Waiver of Personal Appearance and In-Person Oath Requirement for Certain Immigrant Visa Applicants Due to COVID-19. (86 FR 70735, 12/13/21).  The rule is valid from December 13, 2021, to December 13, 2023.  The rule partially implements recommendations made by the American Immigration Lawyers Association (AILA) to the administration to address DOS backlogs: Policy Brief: Reopening America – How DOS Can Reduce Delays and Eliminate Backlogs and Inefficiencies to Create a Welcoming America

Need for the new temporary rule:

Federal statute requires that every immigrant visa application must “be signed by the applicant in the presence of the consular officer and verified by the oath of the applicant administered by the consular officer.” INA 222(e).  Regulations also require immigrant visa applicants to appear in person for an interview at the U.S. consulate abroad. 22 CFR 42.62(b). Furthermore, once issued an immigrant visa, the applicant is required to seek entry and be admitted into the U.S. within 6 months of the date the visa was issued.  22 CFR 42.72(a).

For thousands of applicants who followed all procedures and were issued an immigrant visa, it was not possible to be admitted to the U.S. before the 6-month expiration of the visa due to the pandemic and travel bans.  This new rule allows consular officers to waive the in-person interview requirements for certain immigrant visa re-applications.

Purpose of the new temporary rule:

The rule is intended to address several consequences of the pandemic:

  • A large number of intending immigrants were not able to use their immigrant visas to enter the U.S. within the 6-month validity period of the visa due to the suspension of entry of certain travelers subject to the COVID-related travel bans, the declared National Emergency, as well as other COVID-related issues and concerns.
  • A suspension of routine visa services at U.S. consular offices worldwide in an effort to protect the health and safety of both officers and applicants has resulted in a high demand for visa services, which in turn has resulted in an extensive backlog in the processing of applications for qualified immigrant visa applicants.
  • Even upon the resumption of consular services at posts worldwide, consular resources remain limited and local conditions (such as medical infrastructure, COVID-19 cases, emergency response capabilities, and restrictions on leaving home) remain a concern. This rule will allow consular officers to use their discretion to waive the in-person interview requirement reserving in-person interviews for cases that have not been previously adjudicated, or for which a personal appearance will be more beneficial, including for the protection of U.S. national security.
  • Allow the Department to safely facilitate immigration of foreign nationals to the U.S., a key foreign affairs function of the DOS, which has a significant impact on matters of diplomacy including the host country’s bilateral relationship with the U.S.

See AILA Doc. No. 21121402.

Research by AILA reveals that, according to DOS, nearly 49,000 individuals were issued immigrant visas between August 4, 2019, and September 30, 2021, and have not yet sought to enter the U.S.  Of the individuals issued immigrant visas between August 4, 2019, and May 31, 2021, over 11,000 did not seek admission before their immigrant visas expired.

According to DOS database queries, at least 244 individuals were refused admission into the United States at a port of entry between August 4, 2019, and September 30, 2021, though it is unclear how many of those refusals resulted from suspensions of entry relating to the COVID-19 pandemic.  Some individuals in this population may be eligible to benefit from the TFR.  AILA Doc. No. 21121402.

The Temporary Final Rule allows in-person interviews to be waived in the officer’s discretion:

An immigrant visa applicant who was already approved for an immigrant visa on or after August 4, 2019 (6 months prior to the start of the pandemic and travel bans), but wasn’t admitted to the U.S. prior to the expiration of the 6-month validity period of the visa, must apply again for a new immigrant visa.  The original visa expired.  The new immigrant visa application must be approved in the same classification and on the same basis as the visa that expired prior to admission. The new rule allows consular officers to waive the in-person interview for the current re-application. It also gives consular officers discretion to allow this subset of immigrant visa applicants to swear to the accuracy of the content of their application without appearing in person before a consular officer.

Qualifications for the waiver:

To qualify for the discretionary in-person waiver, an applicant must:

  1. Have been issued a U.S. immigrant visa on or after August 4, 2019;
  2. Seek a new immigrant visa in the same classification and pursuant to the same approved petition as the previously issued immigrant visa, or an immigrant visa pursuant to the same approved petition as the previously issued visa but in a different classification because it was automatically converted due to the death or naturalization of the petitioner of the previously issued immigrant visa. In other words, do not start from scratch with a new petition but only a new visa application based on the prior petition;
  3. Qualify for an immigrant visa in the same classification, or another classification as the result of automatic conversion due to the death or naturalization of the petitioner of the previously issued immigrant visa, and pursuant to the same approved petition as the previously issued immigrant visa; and
  4. Have no changed circumstances that could affect the applicant’s eligibility for the visa. For example:
    • If the previously approved immigrant visa petition was for the adult child of a U.S. lawful permanent resident, and the child married after the visa was issued but prior to being admitted into the U.S., then he no longer qualifies to submit a second immigrant visa application in that same classification, because only U.S. citizens can petition for adult children who are married.
    • If the prior visa application was based on marriage to a U.S. citizen, but the couple has since divorced, then the foreign national spouse will no longer qualify on the basis of that marriage.
    • If, say, the the same classification and basis still exist, but the visa applicant re-entered the U.S. illegally in the meantime, it may be a changed circumstance that affects his current admissibility to the country.

The process for the waiver:

Applicants for a new immigrant visa must complete and submit a new Form DS-260 and pay a new fee.

The applicant must also be willing to affirm under penalty of perjury that the information provided on the Online Immigrant Visa and Alien Registration Application, Form DS-260 (or Form DS-230, Application for Immigrant Visa and Alien Registration if the consular officer authorizes the use of that form) is true.

In lieu of an in-person interview, the consular officer may communicate with the applicant by telephone or email, may request that the applicant provide additional information that the consular officer believes is needed, and may request the applicant to appear in person.

If the applicant identifies the need to change responses to Form DS-260, the consular officer or other authorized consular staff can reopen the DS-260 for the applicant to make changes to that form and re-sign it under penalty of perjury.

86 FR 70735, 12/13/21; AILA Doc. No. 21121402

Impact of the waiver:

Waiving the in-person interview for potentially thousands of visa applicants who were already interviewed and found to qualify, and who now are reapplying based on the same prior petition, will take those applicants out of the interview queue, thereby expediting their processing by years.  It still leaves open the interview requirement if there is any cause for concern on the consular officer’s part.  Taking those applicants out of the queue hopefully will ease the backlog for all those who have been waiting for their first interview.

One of our clients who was interviewed and approved today, December 14, 2021, was deemed “documentarily qualified” February 10, 2020.  The petition was approved, the file was forwarded to the National Visa Center, the DS-260 was completed, fees were paid, and documents were submitted; the case was complete, deemed documentarily qualified, and only waiting for the interview for nearly two years.  This waiver is an excellent step.

If you are in need of experienced legal counsel to assist in your visa application, please call Barbara Marcouiller at (425) 822-2228. 

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