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It's a mess

Posted by Michael Kohler | Dec 15, 2021 | 0 Comments

Like most things over the past 20 months, the immigration-world was turned upside down by the global pandemic we cannot seem to get ourselves out from under.  Closures, or partial closures, of United States Citizenship and Immigration (USCIS) offices burdened an already slow bureaucracy, increased wait times, and frustrated immigration attorneys and their clients alike.  But, while many think of USCIS, an agency within the Department of Homeland Security (DHS), as “Immigration” and point fingers at them to speed up and get things back on track, a much harder to solve, messier problem exists outside the United States beyond the scrutiny and microscope of the public.  That is, the State Department and its Bureau of Consular Affairs located in U.S. Embassies and Consulates throughout the world is a major source of immigration-related issues, stress and agita.

Before travelling to the United States, most foreign nationals must first apply for either an immigrant visa (think: permanent, green card) or non-immigrant visa (think: temporary) through the U.S. Embassy or Consulate in their home country.  In many cases, an applicant must first obtain approval of an underlying petition filed with USCIS before being able to apply for the visa abroad.  But, even with USCIS processing delays of that underlying petition, the real problem is following its approval and the inability to secure a coveted appointment with a consular officer.  No appointment means no visa, means no travel to the U.S., means unhappy, frustrated clients – both family members and employers of foreign nationals stuck abroad.

A recent Continuing Legal Education (CLE) webinar really drove the enormity of this problem home.  One speaker, a current immigration attorney who previously served as a State Department consular officer in many posts through the world, gave personal and anecdotal accounts and reasons for the seemingly never-ending bottleneck.  First, between 300 to 400 consular officers left the State Department when they refused to serve under, and implement the policies of, former-President Trump and that staffing shortfall was never adequately addressed.  Next, when the world “shut-down” in March-April 2020, so did our foreign posts and only the most essential workers remained.  Most consular officers returned to the United States at that time.  Slowly, consular officers returned to their posts, but each post was subject to the rules and regulations of the host country.  If a country was in lock-down or had other restrictions in place to combat COVID, the presence of consular officers did little good.  Even when interviews could resume, they did so at a fraction of pre-pandemic levels due to social distancing, limited building occupancy and staffing issues.  

This speaker painted a bleak picture facing many U.S. consular officers at posts throughout the world: old, cramped buildings, with insufficient ventilation systems and the inability to open windows due to security protocols, working in group-settings (as opposed to private offices), while expected to meet with and process applications of often-times unvaccinated foreign nationals.  With this as a backdrop, it is no wonder interview appointments are limited.

Additionally, let us not forget the numerous country and region-specific travel bans implemented by the former administration.  Each ban contained a provision where an applicant could seek a National Interest Exception (NIE) from the ban, and nevertheless be granted an interview and potentially enter the U.S.  But it was these same consular officers who were now charged with deciding who and which NIE request presented such a compelling or humanitarian reason that they should be granted an interview.  NIE requests by the hundreds came daily to some posts creating yet another backlog.  Many such requests were simply ignored and not answered. 

All the while, USCIS continues to process petitions.  Maybe a bit slower, but they are eventually completed and only add to the list of employers seeking to bring a sought-after worker, or a U.S. citizen seeking to bring her fiancé, spouse, or other family member to the U.S.  When will this all work itself out?  This CLE speaker had no clear or adequate answer, except not too soon.  Certain posts are managing this situation better than others and hopefully some short-term fixes the State Department has implemented will help, but it is not realistic to think these delays will disappear within the next year, or even two.  At least now, when I am explaining the anticipated timeline for visa processing to a client, I will have a clearer, though not rosier, picture of what to expect.  I will likely simply say, “It's a mess.”

About the Author

Michael Kohler

Biography Prior to opening the Law Offices of Michael Kohler, PLLC in 2008, Michael served for 12 years as an attorney for the U.S. government. From 1996-97, Michael served as a Law Clerk for the Immigration Court in New York City. From 1997-2003, Michael was an Assistant District Counsel for th...


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