Nonimmigrant Visa Interview Waiver Authorization Expanded and Extended

On December 23, 2021, the Secretary of State extended through the end of 2022 existing policy guidance for visa interview waivers for certain nonimmigrant visa (NIV) applicants (with minor modifications) and expanded the authorization to include additional categories of NIV applicants, as follows:

Categories NEWLY eligible for discretionary Visa Interview Waiver consideration (H-1, H-3, H-4, L, O, P, and Q):

Consular officers were given the discretionary authority to waive the visa interview requirement for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa and:

• who have never been refused a visa unless such refusal was overcome/waived; and

• who have no apparent ineligibility or potential ineligibility.

Consular officers also have the discretion to waive the visa interview requirement for first- time individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who:

• are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided:

  • they have no apparent ineligibility or potential ineligibility; and

  • have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

Categories with EXTENDED eligibility for discretionary Visa Interview Waiver consideration (F, M, J (academic) and H-2) through the end of 2022:

Previously approved policies authorizing consular officers to waive the visa interview requirement for F, M, academic J, and H-2 visa applicants have been extended (with minor modifications).  The current policies for F, M, and academic J visa applicants are as follows:

Consular officers have the discretion to waive the visa interview requirement for F, M, and academic J Visa applicants who:

• were previously issued any type of visa and:

  • who have never been refused a visa, unless that refusal was subsequently overcome or a waiver of ineligibility was obtained; and

  • for whom there is no indication of potential visa misuse or ineligibility;

or

• are first-time F, M, and academic J visa applicants who/whose:

  • are citizens or nationals of Visa Waiver Program (VWP) participating countries;

  • have no prior ESTA denials;

  • have previously traveled to the United States using an authorization obtained via ESTA to qualify;

  • visa applications reveal no derogatory or potentially derogatory information; and

  • have no indication of potential visa misuse or ineligibility.

Certain H-2 (temporary agricultural and non-agricultural workers) applicants also remain eligible through the end of 2022 under previous authority allowing for waiver of interviews, as do applicants renewing any visa within 48 months of expiration.

How to Apply for an Interview Waiver:

As these waivers are to be granted individually at the discretion of local DOS consular officers, applicants are advised to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview.

Note: To be considered for an interview waiver, an applicant must be applying for a visa at a U.S. consular office in their country of nationality or residence.

DOS Provides Opportunity for Additional Academic Training for J-1 College and University Students in STEM Fields

The U.S. Department of State, through the BridgeUSA program, announced an opportunity for certain College and University Student Exchange Visitors in DHS-designated STEM fields to obtain additional Academic Training time.

Eligible Exchange Visitors must be undergraduate and pre-doctoral degree-seeking J-1 College and University Students who are pursuing or recently completed STEM-related studies. The initiative, which will run for the next two academic years (2021-2022 and 2022-2023), will increase the maximum length of Academic Training from 18 months to 36 months.

Academic Training is a limited form of work authorization for J-1 College and University Students which permits practical training opportunities during or immediately after studies that are directly related to the student’s major field of study. Current regulations cap Academic Training for undergraduate and pre-doctoral candidates at 18 months, with a limited exception permitting “additional time for academic training . . . to the extend necessary for the exchange visitor to satisfy the mandatory requirements of his or her degree program in the United States.” 22 CFR 62.23(f)(4)(ii).

The new initiative further supports the Biden Administration’s recent actions to advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America.

Sponsors seeking DOS approval of STEM Academic Training extension requests are reminded they must comply with the regulations at 22 CRR 62.43(c), including submitting extension requests through the Private Sector’s Office of Designation by email, and including the student’s STEM field and corresponding CIP code.

U.S. State Department Updates Guidance on Confucius Institutes and J Program Sponsorship (Nov. 18, 2020)

On November 18, 2020, the Department of State's (DOS) Exchange Visitor Program (BridgeUSA) issued Guidance Directive 2020-01, Exchange Visitor Program - Confucius Institutes, which provides guidance on the relationship of college and university J-1 exchange programs to Confucius Institutes and associated activities at K-12 schools and universities. Confucius Institutes, sponsored by the Chinese government, serve to promote Chinese language, literature, and culture throughout the world, and they commonly partner with U.S. institutions of higher education. The Guidance identifies “areas of concern” to DOS, and seeks to “provide sponsors more clarity regarding the possible regulatory violations presented in some CI operations so they can make informed choices about sponsoring exchange visitors coming on program through CIs.” Some J program sponsors affiliated with Confucius Institute on their campuses report having received DOS requests for documents and exchange visitor records related to their Confucius Institute.

President Trump Issues Proclamation Suspending Entry of Certain H, J, and L Nonimmigrants through December 2020 (June 22, 2020; updated July 2, 2020)

On June 22, 2020, the president issued a proclamation titled Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak, that will go into effect at 12:01 a.m. EDT on June 24, 2020.

Section 1 of the proclamation extends the effective dates of the President’s April 22 Proclamation titled Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. This proclamation suspended entry of certain new immigrants who do not already have an approved immigrant visa. It was originally valid for 60 days, until June 22, 2020. The new proclamation extends the period for an additional 4 months, until December 31, 2020.

Section 2 of the proclamation suspends "entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas" until December 31, 2020, subject to certain exceptions:

"an H-1B or H-2B visa, and any alien accompanying or following to join such alien [H-4];"

"a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien;"

"an L visa, and any alien accompanying or following to join such alien."

Importantly, the entry bar for those in J Exchange Visitor categories does not apply to exchange categories other than those listed. For example, it does not apply to participants in the J professor, research scholar, short-term scholar, college or university student, or ECFMG alien physician categories.

Section 3 of the proclamation establishes that this entry bar applies only to an individual who:

"(i)  is outside the United States on the effective date of this proclamation;

(ii)  does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission."

An amendment to the proclamation was issued on June 29, attempting to clarify the visa issue and appearing to confirm that visa exempt individuals, such as Canadian citizens, are not covered by the proclamation.

The new section 3 reads:

Sec. 3.  Scope of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:

(i)    is outside the United States on the effective date of this proclamation;

(ii)  does not have a nonimmigrant visa, of any of the classifications specified in section 2 of this proclamation and pursuant to which the alien is seeking entry, that is valid on the effective date of this proclamation; and

(iii)  does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Despite that Section 3 appears to require both that the person was outside the U.S. on the effective date and lacked a valid H, L or J visa on the effective date in order to be subject to the proclamation, the Department of State has announced its position not to issue any of the impacted visas through December 31, 2020. This means that even if a person was present in the U.S. with a valid visa on June 24, if that person departs the U.S. and requires visa re-stamping, they will be unable to do so during the proclamation’s effectiveness. If you are in the designated H, L, or J statuses you SHOULD NOT TRAVEL ABROAD without first speaking with a qualified immigration attorney.

In addition, the proclamation does not apply to:

"(i)    any lawful permanent resident of the United States;

(ii)   any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;

(iii)  any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and

(iv)   any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees."

The “national interest waivers” in Section 3(b)(iv) are intended to include those that:

• are critical to the defense, law enforcement, diplomacy, or national security of the United States;

• are involved with the provision of medical care to individuals who have contracted COVID-19 and are currently hospitalized;

• are involved with the provision of medical research at United States facilities to help the United States combat COVID-19; or

• are necessary to facilitate the immediate and continued economic recovery of the United States.

Additional Measures Called for by the Proclamation

Section 4 directs that, "Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”

Section 5 calls on the agencies to take substantial "additional measures," such as:

• Directing the U.S. Department of Labor and U.S. Department of Homeland Security to ensure compliance with the permanent labor certification (PERM) and temporary labor condition application (LCA) statutory rules that are designed to protect U.S. workers;

• Directing DHS and U.S. Department of State to ensure compliance with biographic and biometric data collection requirements;

• Directing DHS to "take appropriate and necessary steps, consistent with applicable law, to prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States."

• Directing DHS to "consider promulgating regulations or take other appropriate action regarding the efficient allocation of visas pursuant to section 214(g)(3) of the INA (8 U.S.C. 1184(g)(3)) and ensuring that the presence in the United States of H-1B nonimmigrants does not disadvantage United States workers."