Immigration Insights for Uncertain Times: Consular ...

Immigration Insights forUncertain Times:

Consular Challenges, Travel Bans,and the Visa Bulletin

IMMIGRATION UPDATES FOR UNCERTAIN TIMES:CONSULAR CHALLENGES, TRAVEL BANS, ANDTHE VISA BULLETIN

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Today’s Presenters

Kelli DuehningPartner

Kelli joined BAL after a 17-year career with USCIS and INS where

she headed the agency’s legal strategies in the western U.S. Kelli currently leads BAL’s I-9 Practice, advising clients on immigration

compliance and program strategy.

Tiffany DerentzSr. Counsel

As former Deputy Chief of the Visa Office’s Legal Advisory

Opinions Division and senior adviser to the Chief Legal Adviser

for immigration affairs at the Department of State, Tiffany has

served as a trusted advisor to senior policymakers and worked

closely with other federal agencies.

Maggie MurphyPartner

Maggie specializes in complex, creative business immigration

solutions and has over 20 years of experience in immigration law. An industry leader in PERM, I-9 and E-

Verify compliance, as well as business visa cases, Maggie currently serves as

Elected Director on the Board of Governors for the American

Immigration Lawyers Association.


Agenda

COVID-19 Travel Bans

Insight into Department of State Operations and Consular Visa Services

Outlook for October Visa Bulletin


Travel in the News


Travel Has Grown Consistently Through Crisis…Until Now

1,400

1,200

1,000

800

600

400

200

0

1998 2000 2005 2010 2015 20202019

SARS

9/11

Bird Flu

-78%

Source: World Bank, UN World Tourism Organization (UNWTO), Skift Research estimates. Data as of August 2020

COVID-19

-58%

Financial Crisis and Swine Flu

MERS and Zika

(MILLIONS)International Tourist Arrivals Worldwide with 2020 Scenarios

TRAVEL RESTRICTIONSAND CONSULAR OPERATIONS:

WHERE THINGS STAND


COVID-19 Travel Bans• Current Restrictions: Entry to U.S. suspended if present in U.K., Schengen Area, Ireland, Brazil, China,

South Africa, India or Iran within 14 days before travel.

• Status: President Biden has not announced plans to lift or modify the travel bans. Working groups are reviewing. DOS has issued multiple updates to National Interest Exception guidance.

• No designated expiration date: Will remain in effect with potential for modifications.

Travel Bans impact most NIV categories, including H-1B, L-1, H-2B, many J-1.Expect Delays – Reduced consular services and cancelation of visa appointments impact ability to travel to U.S. Expedite requests available under strict criteria. U.S./Canada/Mexico land border restrictions on nonessential travel extended until Sept. 21.

Family relationship to U.S. citizen or lawful permanent resident (spouse, minor child, parent of unmarried minor child).Temporary work-visa travel requires National Interest Exception (NIE) per State Department standards:

• Vital support or executive direction.• Critical infrastructure sector or significant

economic activity in U.S.

Impact Exemptions


U.S. Department of State and Consular Processing

• Over 270 U.S. embassies, consulates, and diplomatic missions

• Consular section staffing, services, and spacing vary

• 2-year tours, rotate in summer

• CA Fact Sheet (FY2019)

https://travel.state.gov/content/dam/travel/CA-By-the-Number-2020.pdf


Worldwide Nonimmigrant Visa Workload

14.113.2 13

12

5

0

3

6

9

12

15

2016 2017 2018 2019 2020

Total NIVs (In Millions)


Immigrant Visa Backlog

• As of July 2021, 531,976 immigrant-visa

applicants are waiting for their interviews

• Only 6% of immigrant visa appointments

have been scheduled; 94% are waiting.

• In 2019, on average 60,866 applicants were

pending interviews each month


A Look Into Consular OperationsWhat factors determine pace of reopening?

Backlogs and need to prioritize family and humanitarian cases

Local conditions and restrictionsOperational challenges

“Diplomacy Strong" reopening framework


Travel and Consular Ops: Key Takeaways

• U.S. travel bans likely to remain until Delta variant, COVID trend reverses.

• Even when travel restrictions are lifted, U.S. consulates are heavily

backlogged.

• Visa appointment availability dependent on local post; expect to wait

several months for appointment.

• Plan workarounds: NIEs, third-country processing, green lanes, short-

term overseas assignments.

FALL 2021VISA BULLETIN FORECAST


Another AOS Surge?

Advancement expected in October 2021, but extent will depend on how many visas are issued and adjustments granted in remainder of Fiscal Year 2021.


Key Visa Bulletin Factors

• Worldwide Fiscal Year Numerical Limits

• Family-Based and Employment-Based Preference Category Limits

• Per-Country Caps

• Spill Over/Roll Over

• Unused numbers are lost


Sample Green Card Timelines

2

3

4

5

6

7

8

9

10

11

12

Oct. 2020 Nov. 2020 Dec. 2020 Jan. 2021 Feb. 2021 Mar. 2021 Apr. 2021 May. 2021 Jun. 2021 Jul. 2021 Aug. 2021 Sep. 2021

Wai

t Tim

e (in

yea

rs)

Date of Visa Bulletin

EB-2 China EB-2 India EB-3 India EB-3 ChinaFinal Action Dates


Potential End-of-Year Scenarios

Congressional actionPreserve unused green card numbers from FY21 for issuance in current category in FY22.

Unused EB green cards from FY21 would be added to the EB cap for FY22.

DISCUSSIONS ONGOING VERY SLIM CHANCE MOST LIKELY SCENARIO

Agency actionSeek opinion of Office of Legal Counsel to allow allocation of visa number earlier in adjudication process.Recapture unused green cards from previous years

No actionCongress, agency do not act.Unused FB numbers go to FY22 EB cap.EB visa numbers go unused, contributing to backlog.


Green Cards: Key Takeaways

• Expect advancement in employment-based categories in October, but not as rapid as last year.

• Plan for USCIS processing backlogs.• Consider filing strategies, timing.• Budget for possible filing surge.


Advisor is the industry’s first multi-media digital platform that provides BAL clients the tools–anywhere, anytime–to adapt to rapidly changing immigration rules.

https://www.bal.com/advisor



Today’s Presenters

Kelli DuehningPartner

Tiffany DerentzSr. Counsel

Maggie MurphyPartner

Thank you for attending! Visit the Worldwide ERC® web site at www.worldwideERC.org, or contact

Worldwide ERC® for more information on these topics. +1.703.842.3400

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