Charles R. Baesler Jr.
Businesses and government offices are ambling toward a return to “normal” following lockdowns in the early era of the COVID-19 pandemic. Most workplaces and government offices have returned to some version of “normal” hours. However, the government agencies responsible for processing United States immigration work cards and visas remain mired in months or years-long backlogs. The practical effect of these backlogs is to require individuals to abandon employment or cancel important travel.
In March 2020, the U.S. Citizen and Immigration Services and consular posts overseas shut down in an effort to slow the spread of COVID-19. While many businesses and offices worldwide had reopened by the fall of 2020, U.S. consular offices remained closed. In addition, the president banned the issuance of visas with narrow exceptions, which remained in place until January 2021.
Although visa issuance resumed in January 2021, travel bans remained in effect for Europe and other affected areas until the end of 2021. A result of the “pent up” demand for work visas was a backlog in the availability of visa appointments, which extended — and still extends — for years at some consulates.
Professional workers and their employers make substantial use of temporary work visas, including H-1B for professionals and L-1 for international executives, managers and specialists. During the lockdown, professionals on these types of visas who were already in the U.S. were permitted to stay but travel outside the U.S. was largely o. limits due to the bans on the issuance of such visas and bans on travel to the U.S. from many affected areas, including almost all of Europe. Since visas were largely unavailable to most workers due to the visa and travel bans, most professionals in H-1B or L-1 status were prohibited from traveling outside the U.S. If they left, it could be months, or even years, before they could return.
In the year prior to the pandemic, the State Department reported that U.S. consulates worldwide issued more than 700,000 nonimmigrant visas per month. This includes visitors, students, exchange visitors, and H-1B and L-1 visas for professional workers. From March 2020 to July 2021, that number fell to about 175,000 per month. From August 2021 to July 2022, the consulates increased visa processing to slightly less than 500,000 per month — still far below the pre-pandemic average. Further, the timeline for securing visa appointments is so far out that urgent travel needs are often unmet, which can result in business and personal losses.
For example, one of the critical areas of visa issuance for H-1B is for foreign physicians who agree to work in medically underserved areas. While such physicians come from all over the world, a substantial number come from the Indian subcontinent. Visa processing in these countries is backed up to the point where the first available visa appointments are often a year or more away.
The State Department has made public commitments to continue to improve visa processing. But, at current rates, it could take years for visa processing to become current.
In the meantime, the State Department could take several steps to improve the process:
• Consulates should increase their capacity to accept “third country” applications for work visas so that individuals from the far reaches of the globe can have visas processed more readily in places such as Canada, Mexico and other countries in the Americas.
• Consulates should add H-1B and L-1 to their high-priority categories. In the early days of the pandemic, consulates gave special consideration to applications filed by students and exchange visitors. Professional workers should be at the same level of consideration as students.
• Consulates should broaden their acceptance of requests for expedited appointments for professionals seeking to attend to ailing parents’ needs. Some consulates have indicated that a parent’s illness is insufficient to expedite an appointment; they will only accept a death certificate. This is unacceptable.
• The State Department should resume renewals of visas from domestic State Department offices without leaving the U.S., a process that was discontinued in 2004. There are no compelling policy reasons to prohibit it, and reintroducing it would go far toward addressing the severe backlog of visa applications.
Charles R. Baesler Jr. is a member in Stoll Keenon Ogden’s Lexington office and has been with the firm since 1994. He serves as chair of the immigration practice and represents clients before the U.S. Department of Homeland Security, U.S. Department of Labor and U.S. consulates overseas, with the aim of obtaining employment authorization for engineers, scientists, professors, doctors, business managers and equine workers. Baesler represents companies based outside of the U.S. to obtain investor visa status to facilitate the transfer of personnel to U.S. markets and bring additional capital to these regions. He routinely advises employers on compliance with federal laws against hiring undocumented workers.