Immigration Updates: Status of the NVC Backlog, E Visa Updates, and Tools to Expedite Your Visa Interview

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides a brand-new update regarding the current backlogs faced by the National Visa Center for cases that are documentarily qualified. As a separate update, Jacob discusses the status of nonimmigrant visa services, specifically for E-2 Treaty Trader Investor Visa applicants at U.S. Embassies and Consulates overseas. What is happening with these visa types and when can you expect to proceed with your case? What options do you have to speed up your case?

To find out more just keep on watching.

Overview

Visa Backlogs

As you know the COVID-19 pandemic has had disastrous effects on the U.S. immigration system, and especially on visa processing at U.S. Embassies and Consulates abroad. Safety and health concerns have prompted Consular sections worldwide to dramatically scale back visa operations, causing significant visa backlogs for both immigrant and non-immigrant visa applicants. The magnitude of these backlogs has become so severe that the State Department has said that it does not believe these backlogs will be cleared even by the end of 2022.

As you may recall in March of 2020, U.S. Embassies and Consulates made the difficult decision to suspend routine visa services worldwide and began limiting their capacity to schedule visa interview appointments for the vast majority of applicants.

This has caused applicants to become increasingly concerned about when they will be able to reunite with family members in the United States and return to a life of normalcy.

Current Status of the Visa Backlog

As of May 2021, the National Visa Center reported an increase of more than 800% in pending applications sitting at the NVC waiting for an interview to be scheduled, with approximately 494,000 reported applications being warehoused at the NVC since at least early April. Out of these applications, only 18,000 applications were transferred to Embassies abroad to be scheduled for visa interviews.

To demonstrate just how severe the current visa backlogs are, in the year 2019, only about 60,000 applications were waiting at the NVC to be scheduled for an interview. When compared to current backlog numbers, the difference is astronomical.

Unfortunately, neither the NVC nor the Embassies have the resources necessary to reduce these backlogs for a multitude of reasons including personnel shortages, limited operational capacity, mandatory local health and safety protocols in place, social distancing regulations, and other operational constraints.

The bulk of these applications will continue to be warehoused at the National Visa Center, until Embassies and Consulates return to normal operating capacity, and are able to accommodate applicants for their visa interview appointments.

E-1/E-2 Visa Interviews at Consulates Overseas

E visa applicants residing overseas have similarly faced delays in visa processing. E-1 nonimmigrants are those who are nationals of a treaty country that wish to be admitted to the U.S. to engage in international trade on his or her own behalf. E-2 visa applicants on the other hand are nationals of treaty countries who wish to make a substantial investment in a bona fide business enterprise in the United States, which they will manage and direct. Typically, E-2 investors are small business owners who start their own business or purchase and direct existing businesses.

Currently, both E-1 and E-2 visa processing has been significantly impacted by the recent backlogs at Embassies and Consular sections around the world.

What has been happening with E visa applications at Consulates worldwide?

According to the State Department, 48,000 E visas were issued in fiscal year 2019, while in 2020 at the height of the pandemic only 22,000 E visas were issued worldwide – less than 50% from the previous year. Unfortunately, the reduction in E-2 visa issuance is costing the U.S. government as well, given that small business owners provide jobs for a great deal of U.S. workers and stimulate the economy.

Despite the limited operational capacity, there are two U.S. Consular posts that have been able to continue scheduling E visa interviews without significant delays, including the U.S. Consulate in Osaka, Japan and the U.S. Embassy in Seoul, Korea. These posts have been able to issue almost as many E visas as they did before the pandemic by increasing their staff and facility space.

In stark contrast, the U.S. Embassy in London issued less than 14% of E visas that were issued before the pandemic.

Europe in particular has been the most impacted by the COVID-19 pandemic due to the Schengen visa ban that is still in force which prevents E visas from being issued to anyone who was physically present within any of the Schengen countries within the 14-day period prior to their entry or attempted entry to the United States. Embassies and Consulates in the Schengen countries have as a result refused to issue E visas altogether.

Embassy E-Visa Statistics

The Embassies in Frankfurt, Madrid, Paris, Rome, and London issued less than half of these E visas when compared to the same period in 2019.
During the pandemic, the U.S. Embassies in Sao Paulo, Brazil and Bogota, Colombia have issued the least E visas at less than 2% when compared to the previous year before the pandemic.
For their part, the U.S. Embassies in Istanbul, Buenos Aires, Dublin have issued less than 6% of E visas when compared to the previous year before the pandemic.
The U.S. Embassy in Calgary, Canada issued less than 26% of E visas when compared to the previous year before the pandemic.
The U.S. Embassy in Monterrey, Mexico issued less than 30% of E visas when compared to the previous year before the pandemic.

Prioritization of Visas

According to the State Department’s April 30^th prioritization announcement, nonimmigrant visa interviews are receiving the lowest prioritization at U.S. Embassies and Consulates, with prioritization being given to immediate relatives of U.S. Citizens, family preference immigrant visas, employment preference immigrant visa applicants, and diversity visa applicants based on a four-tier system:

Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)
Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
Tier Four: All other immigrant visas, including employment preference and diversity visas

Since nonimmigrant visa applicants are receiving low prioritization, applicants should speak with an experienced immigration attorney to determine whether they are eligible for an expedited visa interview appointment based on separate expedite criteria or the National Interest Exception.

When can we expect things to get back to normal?

While this is a somewhat complex question to answer, based on the information provided by the State Department, it may take more than a year for Embassies and Consulates to regain their footing and return to pre-pandemic operational capacity levels. In reality, applicants may be waiting anywhere from 1-2 years to proceed with interview scheduling as before the pandemic. For the time being, the resumption of visa services continues to occur on a post-by-post basis, with no clear guidelines on the return of routine visa services. The resumption of services will largely depend on local country conditions, resources, personnel, and ability for Embassies to handle the increased workload.

What can you do now to face this crisis and try to get your visa interview scheduled sooner?

There are a few tools that may be at your disposal.

Firstly, certain nonimmigrant visa applicants may be able to request an interview waiver. On March 11, 2021, the State Department announced the temporary expansion of interview waiver eligibility to waive the in-person interview requirement for those applying for a nonimmigrant visa in the same classification, if their visas will expire within the next 48 months. This new policy is in effect until December 31, 2021 and will allow consular officers to continue processing certain nonimmigrant visa applications, while limiting the number of applicants who must appear for an interview. This would allow certain applicants to bypass the waiting time to get your visa re-issued.

The second option is to file a request for expedited interview scheduling based on the National Interest Exception (NIE). The National Interest Exception is available to visa applicants who can demonstrate that their entry to the United States is necessary because it is in the National Interest.

One may receive a National Interest Exception:

(1) as a public health or healthcare professional or researcher to alleviate the effects of the COVID-19 pandemic, or to continue ongoing research in an area with substantial public health benefit (e.g. cancer or disease research); OR

(2) to provide care for a U.S. citizen, including alleviating the burden of care from a medical or other institution, or to prevent a U.S. citizen from becoming a public charge or ward of the state or the ward of a medical or other institution; OR

(3) to join an active military member petitioner in the U.S.

There are other considerations that can also make a nonimmigrant visa applicant eligible for the National Interest Exception. If you believe you may qualify, it is important for you to discuss your eligibility with an experienced immigration attorney who can help you navigate the process. We have been successful in many instances and helped applicants pursue scheduling at various U.S. Embassies and Consular sections around the world.

A third and less common option is to request a visa waiver from Customs and Border Protection (CBP). Under section 212(d)(4) of the INA, a person can ask for a visa waiver at a CBP port of entry due to an unforeseen emergency. This is a very narrow exception that can be used in dire circumstances, and such requests can be filed in advance using Form I-943.

Lastly, those in nonimmigrant visa status inside the United States may continue to extend their status with USCIS. Applicants should not travel outside of the United States, because they will likely to be able to secure a visa interview appointment from abroad due to the circumstances.

There is also the option of filing litigation in the court system to try to obtain relief.

Conclusion

All of these considerations should be discussed with an experienced immigration attorney to decide your best path forward. We hope that this information was useful and look forward to keeping you updated in months ahead.

Want to know more? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

Helpful Links

JOIN OUR NEW FACEBOOK GROUP

Need more immigration updates? We have created a new facebook group to address the impact of the new executive order and other changing developments related to COVID-19. Follow us there.

For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.