Suspension of the Visa Interview Waiver Program

March 06, 2017

 

Summary. On January 27, 2017, President Trump signed Executive Order 13769, entitled Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals. On March 6, 2017, the President signed a new Executive Order entitled Protecting the Nation from Terrorist Entry into the United States, which revoked and replaced the January 27 executive order effective March 16, 2017.

Both executive orders contain a virtually identical provision directing the Department of State to "immediately suspend the Visa Interview Waiver Program." This refers to programs that allow the Department of State to waive the general requirement that an applicant for a nonimmigrant visa must submit to an in-person visa interview by a consular officer before a visa is issued. It does not refer to the "Visa Waiver Program" that allows participating countries to enter the United States without visas, as visitors for 90 days. Both executive orders also direct the Department of State to "ensure compliance with section 222 of the INA… which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions." The Department of State has several visa "interview waiver programs," some of which are sourced in "specific statutory exceptions," and some of which are not. The table below contains the Visa Waiver Interview Program suspension language from both executive orders.

Section 8(a) in January 27, 2017 executive order Section 9(a) in March 6, 2017 executive order

"Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions."

"Sec. 9. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions."

"This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government."

This Executive Order was signed and became effective on January 27, 2017. Section 8(a) directed the Secretary of State to suspend the Visa Interview Waiver Program "immediately," i.e., as of January 27, 2017. It will be superseded by the equivalent provision in the March 6, 2017 executive order, effective March 16, 2017.

This Executive Order was signed on March 6, 2017, and becomes effective on March 16, 2017. Since Section 8(a) of the prior executive order and Section 9(a) of this executive order are virtually identical, application of the Visa Interview Waiver Program suspension begun under Executive Order 13769 should should continue unchanged under the new Executive Order.

Visa interview waiver programs that are sourced in "specific statutory exceptions" are likely not suspended by either executive order, and should therefore still be available. These programs include:

  • The visa interview waiver program for applicants younger than 14 and older than 79
  • The visa interview waiver program for renewal of visas that expired less than 12 months ago
  • The visa interview waiver program for diplomats or international organization officials

Visa interview waiver programs that are not sourced in "specific statutory exceptions" are likely suspended by the executive orders. These programs include:

  • The visa interview waiver program for renewal of visas that expired between 12 and 48 months ago
  • The special interview waiver program for certain Argentinian and Brazilian citizens

This NAFSA Note reviews the meaning, scope, and effective date of this presidential directive. This Note does not constitute legal advice. Visa applicants should always check with the specific consulate at which they will be applying for a nonimmigrant visa to determine local consular procedures and policies, and to assess their eligibility. Visa applicants should consult an experienced immigration lawyer if they desire legal advice.

The Parts and the Whole

Section 8(a) of Executive Order 13769 and Section 9(a) of the March 6, 2017 executive order both refer to a specific program and a specific source of authority. It is important to understand what these refer to, as well as what they do not refer to.

  • The "Visa Interview Waiver Program;" and
  • Section 222 of the Immigration and Nationality Act (INA), [8 USC 1202, entitled "Applications for Visas"]

The Visa Interview Waiver Program, not the Visa Waiver Program

First, both executive orders suspended the Visa Interview Waiver Program. This does not refer to the INA 217/8 USC 1187 Visa Waiver Program (VWP) that allows citizens of participating countries to enter the United States as visitors for 90 days without a B visa. Sections 8(a) and 9(a) refer, rather, to the Visa Interview Waiver Program, which allows the Department of State or a consular officer to waive the normal requirement that an applicant for a U.S. visa undergo an in-person interview before the visa is issued. The INA 217/8 USC 1187 Visa Waiver Program (VWP) is not affected by Section 8(a) of this Executive Order.

What is the "Visa Interview Waiver Program" that's been suspended?

So, what exactly is the "Visa Interview Waiver Program" that has been suspended? To answer this question, we have to look to the second reference that appears in Section 8(a): Section 222 of the Immigration and Nationality Act (INA), codified in the U.S. Code at 8 USC 1202. INA 222/8 USC 1202, entitled "Applications for Visas," is the statutory provision that governs the Department of State's authority and process for issuing immigrant and nonimmigrant visas. INA 222(h)/8 USC 1202(h) establishes generally that most applicants for a nonimmigrant visa must "submit to an in person interview with a consular officer unless the requirement for such interview is waived." INA 222(h)(1)/8 USC 1202(h)(1) establishes the following authority to waive the in-person interview requirement:

(h) In person interview with consular officer. Notwithstanding any other provision of this chapter, the Secretary of State shall require every alien applying for a nonimmigrant visa-

(1) who is at least 14 years of age and not more than 79 years of age to submit to an in person interview with a consular officer unless the requirement for such interview is waived-

(A) by a consular official and such alien is-

(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 1101(a)(15) of this title;

(ii) within the NATO visa category;

(iii) within that class of nonimmigrants enumerated in section 1101(a)(15)(C)(iii)of this title (referred to as the "C-3 visa" category); or

(iv) granted a diplomatic or official visa on a diplomatic or official passport or on the equivalent thereof;

(B) by a consular official and such alien is applying for a visa-

(i) not more than 12 months after the date on which such alien's prior visa expired;

(ii) for the visa classification for which such prior visa was issued;

(iii) from the consular post located in the country of such alien's usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and

(iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States; or

(C) by the Secretary of State if the Secretary determines that such waiver is-

(i) in the national interest of the United States; or

(ii) necessary as a result of unusual or emergent circumstances

 

INA 222(h)(1)/8 USC 1202(h)(1) can be read to establish several "specific statutory exceptions" that cover groups of applicants sharing similar characteristics and one "general statutory exception" that covers individual determinations made by the Secretary of State in the national interest.

Specific statutory exceptions

  • INA 222(h)(1), for applicants younger than 14 and older than 79
  • INA 222(h)(1)(A), for applicants seeking diplomatic, NATO, or international organization visas
  • INA 222(h)(1)(B), for applicants seeking renewal of a visa in the same category, when their last visa expired less than 1 year ago

General statutory exception

  • INA 222(h)(1)(C), which allows the Secretary of State to waive the in-person interview requirement after determining that a waiver is in the national interest or is proper due to unusual or emergent circumstances.

The Department of State's "Interview Waiver Programs"

For administrative and management purposes, the Department of State had created "programs" to standardize the exercise of the INA 222(h)(1)/8 USC 1202(h)(1) visa interview waiver authority. The Foreign Affairs Manual (FAM) lists "the following Interview Waiver Programs" at 9 FAM 403.5-4(A):

  1. Interview Waiver Based on Age, as set forth in 9 FAM 403.5-4(A)(1);
  2. Interview Waiver for Diplomats or Officials, as set forth in 9 FAM 403.5-4(A)(2);
  3. Interview Waiver for Renewals (within One Year), as set forth in 9 FAM 403.5-4(A)(3)
  4. Interview Waiver for Renewals (12-48 Months after Expiry), as set forth in 9 FAM 403.5-4(A)(3); and
  5. Interview Waiver for Argentines and Brazilians, as set forth in 9 FAM 403.5-4(A)(4).

The executive orders describe INA 222/8 USC 1202 as requiring "that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions." It is reasonable to interpret the executive orders as suspending Department of State visa interview waiver programs that are not based on a "specific statutory exception," but preserving those programs that are based on a "specific statutory exception."

Tying it together

In the table below, we've mapped the "Interview Waiver Programs" identified at 9 FAM 403.5-4(A) to their probable statutory basis under INA 222(h)(1), and indicate whether each would be suspended or not suspended under the executive orders. Here we'll repeat that this Note does not constitute legal advice. Visa applicants should always check with the specific consulate at which they will be applying for a nonimmigrant visa to determine local consulate procedures and policies, and to assess their eligibility. Visa applicants should consult an experienced immigration lawyer if they desire legal advice.

Interview Waiver Program Specific Statutory Source? Likely Suspended Under EO?

Interview Waiver Based on Age

INA 222(h)(1) - Requires in-person visa interview only for an alien "who is at least 14 years of age and not more than 79 years of age."

Likely not suspended under EO - The age-based "Interview Waiver Program" that waives the in-person visa interview requirement for aliens under 14 and over 79 years of age likely remains in effect after the EO, since it is based in the specific statutory exception of INA 222(h)(1).

Interview Waiver for Diplomats or Officials

INA 222(h)(1)(A) allows waiver of the in-person visa interview requirement for aliens seeking diplomatic, NATO, or international organization visas.

Likely not suspended under EO - The "Interview Waiver Program" for A-1, A-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6 nonimmigrants, as well as applicants for diplomatic or official visas as described in 22 CFR 41.26 or 22 CFR 41.27, likely remains in effect after the EO, since it is based in the specific statutory exception of INA 222(h)(1)(A).

Interview Waiver for Renewals (within One Year)

INA 222(h)(1)(B) - Allows waiver of the in-person visa interview requirement if the applicant is applying for a visa renewal "(i) not more than 12 months after the date on which such alien" prior visa expired; (ii) "for the visa classification for which such prior visa was issued; (iii) from the consular post located in the country of such alien's usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and (iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States."

Likely not suspended under EO - The "Interview Waiver for Renewals (within One Year)" program likely remains in effect after the EO, since it is based in the specific statutory exception of INA 222(h)(1)(B)(i). This is the common visa interview waiver basis that allows individuals whose visas have expired less than 12 months ago to apply through a consular lock box and have their renewal visa processed without an in-person visa interview. Under 9 FAM 403.5-4(A)(5), F-1 and M-1 students, to be eligible for waiver of the visa interview on this basis, must "(a) continue participation in the same program even if at a different institution; or (b) attend the same institution even if in a different program." J-1 exchange visitors, to be eligible for waiver of the visa interview on this basis, "may only be renewed under the Interview Waiver for Renewals (Within One Year) ... if the Student and Exchange Visitor Information System (SEVIS) number has not changed at the time of issuance from the previously issued visa." In addition, consular officers must verify that an F-1, M-1, and J-1 nonimmigrant "is in status according to SEVIS, and should request a personal appearance should the officer identify any discrepancies between the current and previous visa applications, or wish to interview the applicant for any other reason." Applicants should check with the specific consulate at which they will be applying for the visa renewal on this basis.

Interview Waiver for Renewals (12-48 Months after Expiry)

This program does not have a "specific statutory exception" basis; it was likely based on the Secretary of State's general authority to waiver the in-person interview when in the national interest, under INA 222(h)(C)

Likely suspended under EO - The "Interview Waiver for Renewals (12-48 Months after Expiry)" program has likely been suspended by the EO. Unlike the "Interview Waiver for Renewals (within One Year)" program, which is based on a specific statutory exception, the Department of State's expansion of the renewal program to cover visas that expired between 12 and 48 months ago was a purely discretionary program that did not rely on a specific statutory exception.

Interview Waiver for Argentines and Brazilians

This program does not have a "specific statutory exception" basis; it was likely based on the Secretary of State's general authority to waiver the in-person interview when in the national interest, under INA 222(h)(C)

Likely suspended under EO - The special Interview Waiver program allowed the in-person visa interview requirement to be waived for Argentinian and Brazilian first-time visa applicants for a visa other than E, H, L, P, or R, provided the application was younger than 16 or older than 65, who was applying in the consular district of their normal residence. Since this visa interview waiver program was a purely discretionary program that did not rely on a specific statutory exception, it is likely suspended under the EO.

Consular discretion and other exceptions to the visa interview waiver program

It is important to remember that any in-person visa interview waiver program that has survived the executive orders still remains discretionary. Consider the following:

9 FAM 403.5-4(A)(b) reminds consular officers that they have the right and duty to "request a personal interview and any needed additional information when there is any doubt regarding an applicant's qualifications for a nonimmigrant visa (NIV) prior to the issuance of a visa. Keep in mind that you always have the option to require an interview of any applicant if you doubt the alien's credibility or veracity. You must also be vigilant to ensure that personal appearance waiver procedures are not used to commit fraud."

Remember that under 9 FAM 403.5-4(A)(6), Randomization of Interviews, consular officers can randomly require an in-person visa interview to ensure program integrity, even if the applicant would otherwise be eligible for a visa interview waiver.

Finally, INA 222(h)(2)/8 USC 1202(h)(2) requires any alien to submit to an in-person visa interview in any situation where the alien:

(A) is not a national or resident of the country in which such alien is applying for a visa;

(B) was previously refused a visa, unless such refusal was overcome or a waiver of ineligibility has been obtained;

(C) is listed in the Consular Lookout and Support System (or successor system at the Department of State);

(D) is a national of a country officially designated by the Secretary of State as a state sponsor of terrorism [which at the time this NAFSA Note was prepared are Iran, Iraq, and Syria], except such nationals who possess nationalities of countries that are not designated as state sponsors of terrorism;

(E) requires a security advisory opinion or other Department of State clearance, unless such alien is-

(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of INA 101(a)(15);

(ii) within the NATO visa category;

(iii) within that class of nonimmigrants enumerated in section 1101(a)(15)(C)(iii) of this title (referred to as the "C-3 visa" category); or

(iv) an alien who qualifies for a diplomatic or official visa, or its equivalent; or

(F) is identified as a member of a group or sector that the Secretary of State determines-

(i) poses a substantial risk of submitting inaccurate information in order to obtain a visa;

(ii) has historically had visa applications denied at a rate that is higher than the average rate of such denials; or

(iii) poses a security threat to the United States.