Visa Issuance Issues at US Consulates

Spring 2009

From Aronson and Associates, Immigration Attorneys:

Recently, we have learned of a disturbing trend occurring at several U.S. consulates regarding delays in visa i ssuance. While in many instances visas are issued promptly, there have been a disturbing number of instances in which it has been taking a prolonged period of time - sometimes around 150 days or so - to issue a visa, presumably due to delays in completing the mandatory security background check. Members of the American Immigration Lawyers Association's (AILA) national bar have been sharing stories of clients whose visa applications have become stuck in the security background check so as to make them unable to return to the United States.

We have specifically seen this trend in relation to physicians seeking J-1 or H-1B visas abroad, although it is not yet clear whether this development is limited to those in the medical profession or is broader in scope. These delays appear to be most prevalent at U.S. consulates in India, China, Japan, and Canada. This is not an exhaustive list of consulates where delays have occurred, but are only the ones that have been identified thus far. I again want to stress that some visas are, in fact, being promptly issued while others get substantially delayed. Unfortunately, it is just not possible to predict in advance which cases will get subjected to prolonged background security checks.

We do not yet know whether there has been some type of change in the policies or procedures of the Department of State that is causing this security clearance delay development. Under law, the background security check needs to be completed before a visa can be issued, and nothing has changed recently in the law itself. But how the law is administered may be a different matter. Notwithstanding, foreign nationals should be advised that a security background check delay could happen to anyone at anytime when applying for a visa. The fact that someone has not had to wait before does not preclude a delay in visa issuance from occurring in the future. In other words, this is a risk that a foreign national takes anytime he or she applies for a visa.

If you have impending international travel plans, you should immediately contact your attorney of record to discuss how this trend may affect you and what you might expect. Employers and foreign nationals alike should be aware of this development and prepare for possible delays in returning to this country. Although Congressional intervention may be useful in getting updated communications from a particular consulate, this process does not appear to have provided any immediate remedy to those individuals currently stuck abroad.

If you already have a valid visa in your passport or hold some type of reentry document so as to obviate the need to apply for a new visa to a U.S. consulate, we have thus far not had any reports of problems or delays. But if a foreign national has to apply for a new visa, there is an unfortunate new spike in delays in visa issuance, and all parties need to be aware of this possibility. In some instances, international travel plans can and possibly should be delayed until the situation becomes more clear.

But if you need to travel and do not at present have a valid visa or reentry document, please be sure to consult with you attorney, or the OIS, and be prepared for a real possibility of facing delays in getting your visa.