Current Visa Application Process and Considerations – Summer 2022

Immigration MemosDecember 1, 2022

Current Visa Application Process and Considerations – Summer 2022

The vast majority of individuals seeking entry to the U.S. require a visa issued by the Department of State through a Consular Office in the applicant’s home country. There are certain countries that are either visa exempt (Canadians) or visa waiver (individuals from a number of countries qualify for an ESTA travel allowance that permits entry to the U.S. for a period of up to 90 days), in which case such visitors do not need a visa and thus do not need to visit a Consulate before they travel to the U.S.

If the visitor does not qualify for visa exemption or waiver, they need a visa. The Covid-19 Pandemic, combined with staffing shortages, has had a massive and lasting impact on Consular Visa Services in most countries. Consulates have taken steps to limit the number of in-person appointments that are available and/or needed to free up available resources. In turn, by limiting the availability of appointments they have created a significant backlog for appointments, and they have limited the number of emergency visa appointments. By limiting all consular appointments, there has been an increase in emergent travel needs not being met, which has resulted in many consulates raising the bar for qualifying for an expedited visa appointment. To recap – too few appointments, and very limited emergency appointments, so most emergency requests are denied because of the limited availability of such appointments. Additionally, it should be noted, consulates are also attempting to prioritize Immigrant Visas that were shelved in the first year of the pandemic, and they also prioritize F, J, and other visa types such as Ls and Hs. For this reason, the B-1/B-2 visa has become an afterthought.

Given the current appointment scarcity, visa wait times that used to be days or weeks to get an appointment are now weeks, months or in some cases years! We’ve seen individuals book appointments now that are 24 months in the future!

We unfortunately cannot ever guarantee an earlier appointment and given consulate limitations, until things improve (increased staffing, better workflow, more online options) we will see significant wait times. We expect this will be an issue in many consular jurisdictions throughout the remainder of 2022 and 2023.

We recommend that clients who have travel and visa needs do the following:

If in the U.S. and seeking a visa appointment – individuals should not book travel or leave the U.S. until the appointment is secured and they have all the information needed and in hand to receive the visa requested. Additionally, many consulates have relaxed interview requirements, so the individual may be able to return home and either drop off or mail the application materials to receive the visa. For many consulates, the mail-in or dropbox option needs to be selected and scheduled in advance of sending in an application. We ask that clients let us know if we can assist with this process.

If out of the U.S. and seeking a visa here are the steps involved in the process:

  • Draft and submit a DS-160 application for each individual seeking a visa (we can review such applications before they are submitted). The DS-160 requires a digital passport style photo be uploaded. It is important that such applications are properly and completely filled out as any misrepresentation or omission on the application can result in a visa denial. After submission the applicant should keep a copy of the DS-160 filing confirmation page and bring it to the interview.
  • Pay the applicable visa application fee and keep and print a copy of the receipt to include in the visa application package brought to the interview.
  • Use the online scheduling system to book a visa interview at the consulate.
  • As discussed above, the appointment is likely to be far into the future, and in some cases the consulate may not yet be opening appointments requiring the individual to continue to follow up to book an appointment when the consulate releases them. Once an appointment is confirmed the individual should be prepared and bring all needed documents to secure the visa (note: for all visa applications consular officers also require applicants provide fingerprints and often that requires two appointments). Many consulates separate out the biometrics collection with a separate initial appointment at which point the consular employee may also do a document sufficiency review, so we recommend that individuals bring all visa application materials to an initial biometrics’ appointment.
  • Emergency appointments – in the event the individual receives an appointment far into the future and it is after the event that gives rise to the visa, and the reason for entry is extremely important, that individual may consider requesting an emergency appointment. All consulates allow for emergency appointments, but the eligibility for one has become more difficult. In the business context, we need to prove that the need for travel is so emergent that the business faces a significant loss of revenue that may hurt the business’s ability to continue. As an example, if the individual is the VP of Sales from a European company meeting with the U.S. client that represents 40% of the company’s $40 million in annual revenue and this is meant to avoid that revenue loss. A $16 million potential revenue loss that is 40% of the gross revenue is very significant to the company and this may be considered to be emergent. Conversely, an individual wanting to go to the annual sales kickoff for a global company based in the U.S. is not an emergency, that same person wanting to attend annual planning for the company is not an emergency, nor is the individual trying to prospect for new U.S. clients that are likely to sign if an in-person meeting can happen – in each of these cases the consulate will expect that the individual can simply wait and if necessary attend by zoom.
  • Earlier appointments – if an individual continues to check the appointment booking website earlier appointments may show up, either based on a cancellation or because the consulate has found additional resources to add in more appointments. Individuals should take earlier appointments if they are beneficial. Consulates also limit the number of times an individual can reschedule appointments, although they don’t publicly state how many reschedules are allowed. As a rule, we recommend that one not reschedule more than twice so as to not trigger a decision from the consulate to not allow the appointment.

IF – the visa appointment is within a timeframe that works, or can work, for the travel anticipated, keep the appointment, and prepare to get the visa issued. If anything, material changes between the time of completing the DS-160 and the actual appointment the individual should complete an updated DS-160 to submit and bring confirmation of to the appointment.

If waiting is not an option

This memo was written in May 2022 and over time the situation should improve, and some consulates will improve their appointment timeframes quicker than others, or they may prioritize appointments differently depending on the workload they are experiencing. These are the initial work-arounds available when the visa interview time is significant.

  • Is there an option for Visa Waiver or Visa Exemption? If the person holds a second citizenship that permits ESTA or visa exemption, they should get a passport issued for that country.
  • Has the individual previously held a U.S. visa in any classification (in addition to a B-1/B-2)? The visa mail-in or dropbox option has been significantly expanded, so that it is often available to B-1/B-2 visas if the individual previously held a different visa (within a certain timeframe). If so, take the dropbox option (note: in some consular jurisdictions there are even delays for dropbox processing. Additionally, not all consulates post information on the interview waiver/dropbox eligibility, and it is only after submitting the DS-160, paying the fee and seeking to book an appointment will the consulate redirect the individual to a mail-in/dropbox option).
  • Consider traveling to another country to have the visa issued. This should be discussed with counsel, as not all consulates will accept visitors attending such consulates. There are generally three types of Consulates at present – 1) consulates that indicate they will allow third country national applications (people who live in country other than the one in which the consulate is based); 2) consulates that indicate appointment availability is highly limited due to staffing or Covid, and they may or may not indicate they will not accept third country national applications, and; 3) consulates that are silent about their status in handling applications for people who do not live in the jurisdiction. We recommend that individuals avoid #2, look at #1, and consider #3. To ensure that an appointment will be honored the individual can also email the consulate to request confirmation. While we understand that processing elsewhere outside of an applicant’s home country can significantly speed up the process, such a decision should not be made lightly as the individual will incur additional costs of travel and stay to process the visa, and unless a consulate has directly confirmed they will review the application and visa request, they still may choose not to take jurisdiction on a case. For this reason, it is best to double-check the website before traveling to the consulate for the visa interview to guard against a process change – where a consulate moves from accepting third country nationals to no longer processing them.
  • Consider other visa types that receive quicker processing. We generally don’t recommend applying for a visa classification that isn’t needed – if someone is a legitimate visitor, they shouldn’t be entertaining an L-1, or J, or H visa, they should simply enter on the B visa. But unusual times require unusual approaches, and similar to a Canadian executive who travels to the U.S. repeatedly for meetings receiving an L-1 status to avoid future scrutiny by CBP; we recognize if the business travel requirement is sufficiently important, other visa types may need to be considered. Most common among these is the L-1 Visa based on a Blanket approval – this is a priority visa type and likely receives a much quicker appointment at the consulate, and no prior filing fee is required. Additionally, the L Blanket Visa is also a less expensive alternative to some of the other visa options that may be available. We are happy to discuss other available options to applying for a B-1/B-2 visa.

We look forward to a day when consular operations are capable of meeting the current demand for visa applications. As that is not the current situation, we do recommend that any individual or company that anticipates a visa travel related need in the future apply as early as possible in advance of that need, and this may include individuals who expect to travel in late 2023 applying now for a visa. If there is one thing we’ve learned since the Covid-19 Pandemic was declared in March 2020, is to expect things to no longer work, even when you think they should. If the individual is lucky, in applying now, they’ll secure a timely appointment well before the anticipated travel, and as most passport holders are entitled to a ten-year B-1/B-2 visa, receiving the approval early ensures no limitation on the individual’s travel. And if the individual has plans to visit another corporate location for a period of time that may allow for a visa application to process, that may also be an available option.

If we can be of assistance in any way in helping procure a successful visa, please don’t hesitate to reach out to our team.

To get started on your visa application visit this link.

** This memo is provided for informational and discussion purposes only.  It does not act as a substitute for direct legal contact on an individual basis **