Nonimmigrant Visa Interviews Required for Most Applicants
Posted May 30, 2003

In our May 23, 2003 What People are Asking column, we noted that many MurthyDotCom and MurthyBulletin readers inquire about news reports proclaiming that all nonimmigrant visa applicants need to have in-person interviews. That rumor is confirmed. The U.S. State Department (DOS) has released a cable (late May 2003) reflecting substantial restrictions on the waiving of interviews for nonimmigrant visa applicants. The net result of this is that, by no later than August 1, 2003, all consular posts will require interviews for the vast majority of nonimmigrant visa applicants. Nonimmigrant visas include all of the temporary "letter" visas, such as B-1/B-2 visitor, F-1 student, H-1 temporary professional worker, L-1 intra-company transferee, J-1 exchange visitor, and so on through the visa alphabet.

The requirements are written in terms of eliminating the ability to waive interviews, rather than increasing the requirement for an interview. The result, however, is the same. The requirement for a personal interview under the changed regulations can only be waived if the applicant poses no national security risk AND meets one of a list of additional requirements. The broadest of these allows a waiver for persons age 16 or younger or age 60 or older. There is also a waiver for persons seeking re-issuance of a visa within twelve months of the expiration of a previously-issued visa in the same category, if there are no other concerns. The requirement for an interview can also be waived for persons seeking visas in diplomatic and international organization representative statuses. It is possible, too, to waive the requirement when it is "in the national interest to do so or because of unusual circumstances." What this means for most of our readers is that they will need an interview if they need to obtain a visa at a consulate. The cable emphasizes that, even when it is still possible to waive the interview, the consular officers require an interview if they see fit to do so.

In certain circumstances, interviews are required even if a person fits within a category permitting waiver of the interview. This is not a change in the law, but it is included in the cable as a reminder to the consulates. It stipulates that cases require interviews if: the person does not reside in the consular district; the person was previously refused a visa; the person is subject to a "hit" in the background check or there are other security issues (it is still possible to make exceptions for As and Gs who fit this category); or the person is identified as being a member of a "high-risk" group for fraud, security, or other visa-refusal reasons.

With respect to the provision allowing for waiver if it is "in the national interest or because of unusual circumstances," this can be both a blanket exception as well as an individual exception. The consulates can request an exemption for a certain class of applicants if they can show that it would be in the national interest, without causing a security risk. The examples given as possibilities included a natural disaster or political turmoil that would make it difficult for applicants to appear in person for an interview. Any such request must address the security concerns and the general conditions in the country where the consulate is located. Included in the conditions to be considered are the rate of fraud and the rate of nonimmigrant status violations in the country. Individual exceptions can be granted. For example, an individual with a medical condition that would prevent travel to the consulate may be found to be exempt from the interview requirement.

The DOS cable recognizes the logistical problems that will result from this requirement. Consular posts are directed to establish an appointment system immediately, if they do not have one already in place. The cable acknowledges that the interviews will cause backlogs in the processing times and provides instructions for requesting additional personnel.

Delays in obtaining visas disrupt productivity for U.S. businesses dependent upon foreign nationals in the workforce. Problems run the gamut from students being unable to enroll in school in a timely fashion to workers who cannot start projects as scheduled to professionals who cannot participate in international conferences to relatives who are unable to attend important family events. If interviews are required, there should be consular officers available for the interviews within a reasonable timeframe, meeting the needs of today's fast-paced world. While individuals can do their best to request visas in advance of anticipated travel dates, it is not always possible for a variety of reasons - including the need for BCIS approval of petitions in employment-based cases. If security concerns necessitate these interviews, harried consular officers, overloaded with cases, cannot meet this objective, since proper scrutiny and timely processing requires sufficient numbers of trained personnel to perform the interviews. Providing sufficient personnel for these interviews requires that the DOS receive adequate funding. We at The Law Office of Sheela Murthy urge that adequate funding be provided to the DOS for this purpose.