The worldwide COVID-19 pandemic has made it very challenging for U.S. employers in timely need of temporary foreign workers on nonimmigrant visas to run their businesses and for U.S. educational institutions seeking to educate international students and employ temporary international faculty members.  On December 23, 2021, the U.S. Department of State (“DOS”), in consultation with the U.S. Department of Homeland Security, made additional effort to reduce wait times for issuance of U.S. visas to such foreign nationals.  It has now expanded and extended through December 31, 2022, the discretionary authority of U.S. consular officers to waive the in-person interview for applicants who are applying at a U.S. embassy or consulate in their country of nationality or residence for a non-immigrant visa in one of the following employment- or academic-based categories.[1]

  • Applicants for an H-lB (Specialty Occupation Workers), H-2 (Temporary Agricultural and Non-Agricultural Workers), H-3 (Trainees or Special Education Exchange Visitors), H-4 (Accompanying Dependents of H-lB Visa Holders), L (International Executives, Managers, and Specialized Knowledge Workers and Accompanying Dependents), O (Workers with Extraordinary Ability in the Sciences, Education, Business, Athletics or Arts and Accompanying Dependents), P (Outstanding Athletes, Athletic Teams and Entertainment Companies and Essential Support Personnel) or Q (International Cultural Exchange Program Trainees and Workers) visa, who have an individual petition approved by U.S. Citizenship and Immigration Services (“USCIS”), who were previously issued any type of U.S. visa,  who were never refused a visa, unless such refusal was subsequently overcome or waived, and who have no apparent or potential visa ineligibility.
  • First-time applicants for an H-1, H-2, H-3, H-4, L, O, P or Q visa, who have an individual petition approved by USCIS, who are citizens or nationals of a country participating in the Visa Waiver Program (“VWP”), who have previously traveled to the U.S. using an authorization obtained through the Electronic System for Travel Authorization (“ESTA”), and who have no apparent or potential visa ineligibility.
  • First-time applicants for an F (Academic Students and Accompanying Dependents), M (Vocational Students and Accompanying Dependents) or Academic J (Professors, Research Scholars, Short-Term Scholars or Specialists and Accompanying Dependents) visa, who are citizens or nationals of a VWP participating country, who have previously traveled to the U.S. using an ESTA authorization[2], and who have no apparent or potential visa ineligibility.
  • Applicants for an F, M or Academic J Visa who were previously issued any type of U.S. visa, who were never refused a visa, unless such refusal was subsequently overcome or waived, and who have no apparent or potential visa ineligibility.

To further reduce the significant increase in visa processing times caused by the  pandemic, the DOS also has extended indefinitely its prior authorization giving U.S. consular officers the ability to waive the in-person visa interview for foreign nationals applying to renew a nonimmigrant visa within 48 months of its expiration date.

A word of caution, however, to those who wish to avail themselves of these most recent changes to DOS policy.  Consular resources and the capacity to adjudicate nonimmigrant visa applications vary substantially among the various U.S. embassies and consulates during this global pandemic.  Therefore, applicants for employment- or academic-based nonimmigrant visa must always check the relevant U.S. embassy or consulate website to determine the level of availability of such services and to familiarize themselves with requirements for applying for a nonimmigrant visa or visa renewal without an in-person interview.

[1] On December 23, 2021, previous DOS policies giving U.S. consular officers discretionary authority to waive the in-person visa interview for certain H-2 temporary workers and certain students, professors and research scholars in the F, M and Academic J visa categories were also extended through December 31, 2022.

[2] Notably, this previous travel to the U.S. under ESTA requirement is a change from prior DOS policy.

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Photo of Brenda A. Eckert Brenda A. Eckert

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination…

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination claims and related state tort claims.

Photo of Bradley Harper Bradley Harper

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green…

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green card” petitions, as well as with preparing and filing Responses to Requests for Evidence. He also provides general immigration advice to clients who have submitted or are preparing to submit family-sponsored immigrant visa (“green card”) petitions, adjustment of status applications, and applications to become naturalized U.S. Citizens.