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How Employers Can Cope With the Work Visa Backlog

Sept. 15, 2022, 8:00 AM

The US immigration system has always moved slowly, but as the effects of the Covid-19 pandemic linger, its pace has slowed to a crawl. Nonimmigrant visa applicants face significant bottlenecks, detours, and roadblocks in the process.

US embassies abroad are experiencing staff shortages due to the pandemic, and the associated consequences for visa applicants and sponsors are dire. Employers are feeling the impact of delays across the board.

Due to massive backlogs, many applicants are waiting abroad for months for an appointment that, prior to the pandemic, would have been scheduled within days or weeks depending upon the jurisdiction.

Wait times for nonimmigrant visa appointments currently range from two days in Hong Kong to 387 days in Mumbai. As a result, foreign workers are sometimes separated from family members and unable to start employment in the US for extended periods of time.

These delays have a substantial business impact as well, given that foreign national employees must renew their visas outside the US.

Employers might contend with employees who are stuck abroad for extended periods of time. They also have to navigate financial repercussions, as well as legal and tax implications of unplanned delays.

While employers may not be able to directly speed up processing, some practical steps can help ease the burden on companies and employees.

Increase Communication

It is important to maintain regular communication between employers and foreign national employees to minimize the impact of visa issuance delays.

Develop a travel plan for all foreign national employees and advise that, absent exigent circumstances, employees should refrain from leaving the country until they have secured a visa appointment.

Foreign national employees should always notify human resources and legal counsel before departing the US so the business, together with counsel, can review the employee’s immigration status expiration and visa stamp validity to formulate a plan for travel.

Employees should make flexible travel plans to account for potential visa processing delays even after the interview.

Review Interview Waiver Eligibility

Once foreign national employees have shared plans for international travel, determine whether they are eligible for a waiver of interview in their home country, to reduce wait time for the visa stamp.

In the past year, the State Department has greatly expanded eligibility. In-person visa interview waivers are permitted for a variety of nonimmigrant visa applicants, including first-time visa applicants and H-1B and L-1 visa renewal applicants under certain circumstances.

Notwithstanding, the visa interview waiver program is only as helpful as a particular consular post allows. As the State Department has continued to expand visa waiver eligibility throughout the course of the pandemic, consular posts worldwide have struggled to stay abreast of all the changes.

Accordingly, consular posts are implementing State’s visa waiver criteria inconsistently.

Some posts use the full extent of the expanded policy for certain first-time visa applicants, some allow visa interview waivers only for visa renewal applicants, and still others are not allowing for visa interview waivers under any circumstances.

For example, while the consular post in New Delhi readily waives visa interviews for H-1B renewal applications that meet specific criteria, the consular post in Nairobi, Kenya does not allow for interview waivers for H-1B visa applicants under any conditions.

Significant delays in Europe are, in large part, the result of the Ukrainian refugee crisis, and refugee applications are taking precedence there.

Expanded eligibility has in turn led to increased demand for visa interview waivers. Accordingly, it can take less time to wait for a visa appointment than to secure an interview waiver.

For example, visa appointment wait time may be three to four weeks in a particular post, but the interview waiver route may take four to six weeks after submission of the waiver application.

Though rare, there is also the risk that the applicant is denied a visa interview waiver after the consular officer reviews the application.

Is an Emergency Appointment Possible?

If the employee does not qualify for an interview waiver, securing an emergency appointment may accelerate the visa process.

Emergency appointments are available for a number of specific situations, including urgent business travel, medical emergencies, funerals of family members, and for student and exchange visitors looking to resume work in a timely period. Employees must be prepared to thoroughly document and explain the urgent nature of their travel.

As with visa interview waiver requests, requests for emergency appointments are adjudicated differently depending upon the consular post. Each US consulate has its own internal guidelines for granting expedited appointment requests.

It is prudent therefore to check the specific consulate’s website to confirm its requirements. While emergency appointments for medical or humanitarian circumstances typically have a higher likelihood of approval, recently there has been an increase in emergency appointment approval for urgent business travel.

To secure an emergency visa appointment for business travel, applicants must provide a detailed letter from their employer stating the urgency of the business need, the nature of the business, and demonstrating the loss of opportunity or remuneration if the employee is not able to enter the US.

Navigating the delays and bureaucratic challenges of the visa process can be difficult as consular procedures are changing rapidly. Employers and their foreign employees are encouraged to seek advice from their attorney with respect to the process for each embassy.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Amy Fallon is a partner in Fragomen’s New York office. She provides counsel on all major employment-based temporary and permanent visa categories, family-based permanent resident applications, and immigration compliance to an array of international corporate clients.

Neelam Penta is a senior associate in Fragomen’s New York office. She provides strategic counseling on all employment-based immigration matters, including nonimmigrant and immigrant visa options.