IMPORTANTE INFORMACIÓN DEL DEPARTAMENTO DE ESTADO

Can DOS provide any updates on DOS’s plans to reduce backlogs in these countries, such as in Mexico and Canada? 

Response: The investments we’ve made in our people, our facilities, and our technology are transforming wait times. Our wait times have dropped by nearly 60 percent since coming out of the pandemic. The current global median wait time for a first-time B1/B2 visa appointment is 60 days, a major improvement for our applicants and a result of our concerted efforts around the world. Last year we set the ambitious goal to bring wait times in 90 percent of the world to under 90 days. Currently, almost three quarters of our missions that process B1/B2s are there, and we continue to bring to rest down to that goal. For example, in Brazil, the average wait time for a first-time B1/B2 appointment is one month. As of this month, there are only six countries where the first-time B1/B2 wait time is over one year: Canada, Colombia, Ghana, India, Peru, and Turkey. These are some of our largest markets, but we are driving wait times down there too. Mission Mexico is not on that list today after successfully cutting wait times by 60 percent since May 1. And overall, in the top 20 inbound visitor countries, the average wait time now is around six months.

Can attorneys reach the consulate?

Attorneys that experience specific issues on a case should continue to reach out to the post or office-specific email addresses (GSS, NVC, KCC, etc.) so that they can be addressed.

E Visas

DOS has indicated that KCC may offer assistance to posts that request it in an effort to reduce delays. Nevertheless, members report extensive delays at some posts, including Barbados, France, Italy, Colombia and the Netherlands. Is KCC assistance still available for posts? If so, has DOS made posts aware of this potential resource?

Response: We began a pilot in 2023 aimed at centralizing E1/E2 visa prescreening at the KCC to enhance the efficiency, consistency, and overall quality of the visa adjudication process. The current decentralized approach places a disproportionate administrative burden on low-volume posts, leading to inconsistencies and inefficiencies that can hinder the Department’s mission to promote foreign investment and economic growth in the United States. Although, the pilot is aimed at a few posts we do hope to expand it to more posts that have a low- to mid-sized E visa volume.

At the January 2022 liaison meeting, DOS confirmed they are looking at numerous options to improve E visa adjudications, including remote processing to help certain posts (such as Ankara). DOS also confirmed that it is working to create an institutional knowledge base to support these situations. Can DOS provide an update on its efforts to implement processes or procedures to improve adjudications?

 We also conducted a Global E Visa workshop in May at Embassy Tokyo. This location was chosen as Mission Japan has the largest E Visa mission, processing more than 20,000 E visa cases annually. Participants from U.S. embassies and consulates around the world joined subject matter experts from across CA to share experiences, innovations, and best practices. Some of these innovations are being further developed by KCC.

Regarding securing E visa interviews, DOS has also suggested that E visa applicants can file at any post that will accept them. Some posts use an E visa company registration system. Can an executive or essential employee of a company with E visa registration at one post apply for an E visa as a TCN at another post based on the company registration from the first post?

Response: If an enterprise employee (i.e. executive/supervisor/essential employee) applies for a visa outside their consular district, then the post where the visa interview will take place needs to conduct its own evaluation of the enterprise and the applicant.

INA 214(b)” and provides a summary of the Presumption of Status clause of INA§214(b). Unfortunately, the summary is inaccurate. The statute states that anyone who is not a U.S. citizen is presumed to be an immigrant, while the FAM adds the phrase “and ineligible for an NIV.” This presumption of ineligibility is inconsistent with the statute and creates an additional burden for applicants, resulting in denials of applications that should otherwise be approved.

Response: The statutory presumption in section 214(b) is that an applicant for a nonimmigrant visa other than an H1B or L is an intending immigrant, which an applicant can rebut by establishing that they are “entitled to a nonimmigrant status.” If an applicant is unable to rebut the presumption of immigrant intent, they will be ineligible for the visa.

Will DOS amend the FAM to remove the reference to a presumption of ineligibility and instead use the statutory language?

AILA appreciates DOS’s clarification and appreciates that 9 FAM 403.10-3(A)(3) provides officers with samples of 214(b) refusal letters for both “lack of ties” and “for reasons other than lack of ties.” Unfortunately, use of distinct refusal notices for reasons other than lack of ties has been inconsistent among consular posts. Can DOS remind officers to distinguish between 214(b) refusal letters based on lack of ties and reasons other than lack of ties?

Response: Consular officers refuse applicants orally and in writing for any nonimmigrant refusal. When refusing an applicant 214(b), consular officers explain the law and refuse the applicant in clear terms. The Department will remind posts as needed to provide applicants the refusal letter most appropriate for their circumstances.

INA 212(d)(3)

• AILA also recognizes that this language implements the Administration’s efforts to provide additional relief to DACA recipients and DACA-class individuals; however, we also note that the general language of the provisions could equally apply to any NIV applicant who requires a waiver under INA 212(d)(3) and meets the stated criteria (e.g. a graduate of a U.S. university who is seeking an E-2 visa but requires a (d)(3) waiver for a controlled substance violation). Please address the following: Does DOS envision application of the provision beyond U.S. college educated individuals who are seeking H-1B visas?

Response: Consular officers have always been permitted to recommend nonimmigrant waivers for any individual with an ineligibility who overcomes the presumption of immigrant intent under INA 214(b) or who is applying for a visa classification where dual intent is permitted. Many DACA recipients and Dreamers have ineligibilities related to their presence in the United States and have known no other home. In cases where dual intent is not permitted, consular officers must be convinced an applicant overcomes the presumption of immigrant intent.

• What specific language will be included on the visa stamp to note that a D3 waiver has been granted?

Response: All applicants granted a waiver of their ineligibility receive standardized annotations on their visas. We do not anticipate deviating from this standardized format.

• How is DOS monitoring the implementation of this new guidance? Is the agency collecting data on how many applicants have been requested, granted, or refused a 212(d)(3) waiver applying this new guidance and at which posts?
• What is the proposed timeframe for an expedited 212(d)(3) waiver under this added provision? Does this timeframe vary depending on the visa category and/or the post?

Response: For years, consular officers have issued visas based on waivers of inadmissibility grounds, including those whose waiver requests are expedited. We are monitoring applicants who receive waivers as a result of the revised guidance, but so far the volume has been low.

Response: We are coordinating with our colleagues in CBP’s Admissibility Review Office (ARO) to determine the turnaround time for expedite requests. We expect to be able to turn these around in a matter of weeks.

AILA acknowledges DOS and USCIS for using almost all available employment-based immigrant visa numbers (save for EB-5 reserved numbers) for FY2024 and publicly communicating the exhaustion of certain employment-based categories in August and September. In FY2024, cutoff dates advanced slowly, if at all, for the first quarter while DOS and USCIS monitored demand. For FY2025, does DOS anticipate a similar, cautious approach to advancing cutoff dates as was used in FY2024? Does DOS anticipate any significant increases or decreases to the availability of immigration visas in FY2025 versus FY2024?

Response: Yes, State anticipates taking a similar cautious approach as in FY 2024. State and USCIS issued/adjusted more family-sponsored preference visas in FY 2024 so applicants should anticipate a lower employment-based limit in FY 2025.