On December 23, 2022, the Department of State announced it would extend its policy to waive in-person interviews for certain nonimmigrant applicants (F, H-1, H-2, H-3, H-4, J, L, M, O, P and Q) through December 31, 2023. Applicants whose nonimmigrant visa (of any type) expired within 48 months are eligible when applying in their country of nationality or residence. DOS expanded its interview waiver policy in response to severe delays caused by consular closures due to COVID-19. Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview.
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.
Major Settlement Changes How USCIS Adjudicates Work Permits for H4 and L2 Nonimmigrant Spouses
The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown achieved a historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization.
The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Watch this space as we await the details of how the settlement agreement will be implemented.