AILA proposes 10 point plan to reopen America

Urges Biden to terminate “not common-sense” Covid travel restrictions targeting India, other nations.

As America comes out of the Covid-19 pandemic, the American Immigration Lawyers Association (AILA) has proposed a ten point plan to reopen America and reestablish the United States as a welcoming nation.

Noting that the State department’s visa backlog has exploded throughout the covid-19 global pandemic, AILA in a new policy brief released Tuesday outlined how it can reduce delays and eliminate backlogs and inefficiencies.

“The impact and effects of the pandemic are far reaching and will continue to impact the agency’s operations moving forward unless the department transforms itself by considering additional policies that can help as we come out,” it said.

Despite rescinding certain Trump era travel bans, President Joe Biden “had resurrected regional travel bans under the guise of Covid-19, exacerbating already crisis-level immigrant and nonimmigrant visa backlogs and visa processing delays” at the State Department, AILA noted.

These restrictions targeting several countries including India and the pandemic in general have had significant consequences for individuals, families, and US businesses for more than a year, it said .

Read: Covid-19: AILA sues USCIS for maintaining non-immigrants’ status (April 8, 2020)

Throughout the Covid-19 global pandemic, there has been a sharp reduction in the issuance of immigrant visas (IVs) and nonimmigrant visas (NIVs). In 2019, the monthly average of immigrant visa cases pending at the National Visa Center (NVC) waiting for an interview was 60,866.

Two years later, those numbers have skyrocketed, with the NVC reporting 506,221 immigrant visa applications awaiting interviews in June 2021–an approximately 732 percent increase.

Nonimmigrant visa issuance also fell sharply during this time with monthly averages for issuances falling from over 721,305 to about 144,224 per month, a roughly 80 percent fall on average.

AILA said its policy brief offers “sensible policies and procedures” that the State Department can utilize to ensure its continued efficient function of beyond the Covid-19 global pandemic.

Read: AIC and AILA submit rulemaking request to DHS seeking access to counsel (May 27, 2017)

Recommendations proposed by AILA to eliminate pandemic-related consular backlogs include:

1. Reopen America

As the Covid-19 pandemic subsides in the United States and individuals here and around the world are being vaccinated, it is time for the administration to terminate travel bans that were enacted under the guise of stopping the spread of the disease, AILA said.

Describing travel restrictions as “not common-sense measures that are based on science,” AILA urged Biden to terminate them to re-establish a welcoming America.

2. Resume stateside processing of visa renewals

At a time when the immigrant visa backlog is more than eight times the normal backlog and encompasses more than half a million documentarily qualified applications, reinstituting US nonimmigrant visa reissuance would be a tremendous step in allowing consular posts to focus on reducing the backlog and other key priorities, AILA said.

As these are employment-based nonimmigrant classifications, this would further enable international travel and commerce to resume more freely as we move beyond the pandemic, further spurring economic activity which is sorely needed at this time, it said.

As domestic operations would undoubtedly need to scale up to meet this demand, such a policy would create US jobs to further assist in alleviating the economic impact of the pandemic, AILA said.

3. Expand visa interview waiver eligibility

In the interest of efficiency and minimizing the number of in-person interviews at posts, AILA welcomed the State Department’s expansion of the nonimmigrant visa interview waiver to all nonimmigrant categories for 48 months through the end of 2021.

AILA suggested further extension of the program through June 30, 2022 and further expansion of who may qualify for a visa interview waiver.

4. Automatically extend visas that have expired during the Covid-19 global pandemic by 24 months

The State Department AILA said should further consider providing 24-month automatic extensions for nonimmigrant visa holders who were either stranded abroad or required to return home for urgent business or family emergencies during the Covid-19 global pandemic, provided that they have a valid I-797 notice from USCIS or a valid DS-2019 or I-20.

5. Maximize staffing on IV processing at consular posts

AILA recommended filling long-standing vacancies in State Department and Department of Homeland Security at the ambassadorial, Deputy Assistant Secretary (DAS), and Assistant Secretary (AS) levels to restore proper management and operations at both agencies.

In addition to staffing leadership positions, it will be necessary to increase staffing at consular posts and, to a lesser extent, at the Visa Office, AILA said suggesting recruiting recent graduates and consider offering, over time, to forgive student debt in exchange for their service.

6. Revise regulations to allow virtual immigrant and nonimmigrant visa interviews

AILA urged State Department to quickly finalize a proposed temporary final rule allowing the waiver of certain in-person appearance and oath requirements for immigrant visa applicants and to ensure that it is broadly applicable to streamline as much of the immigrant visa processing as possible.

In conjunction with the Kentucky Consular Center (KCC), it could review its research on fraud risk factors and develop algorithms to identify and prioritize low fraud cases that could qualify for remote processing. Higher-risk cases could continue to require in-person interviews, AILA said.

7. Leverage US-based consular officers to adjudicate visa applications

In addition to in-country foreign service officers (FSOs), new FSOs, deputized civil servants, and retirees could be trained as supplemental personnel to engage in remote visa interviews and handle other aspects of the visa issuance process from within the United States, resulting in reduced appointment wait times and avoiding space constraints at consular posts abroad, AILA said.

8. Admit all US lawful permanent residents (LPRs) returning to the United States from abroad without conducting an abandonment analysis if they last departed the United States on or after December 31, 2019, or who had a valid reentry permit on that date

Noting that current regulations impose a presumption of abandonment for LPRs who have been outside the United States for more than one year, AILA recommended that the abandonment analysis be formally waived as a matter of policy to eliminate inconsistent adjudications among ports of entry.

9. Adopt a policy to automatically extend immigrant visas from 6 months to 18 months, in coordination with Customs and Border Protection (CBP)

AILA noted that travel restrictions imposed have prevented an unprecedented number of individuals issued immigrant visas within six months of the onset of the pandemic from traveling to the United States before those visas expired.

“To avoid the administrative burden of having to reissue those visas, and in recognition of the travel constraints caused by the pandemic, it’s prudent to include, among the administration’s Covid-relief priorities a legislative provision that would extend, by operation of law, the validity of all immigrant visas issued on or after June 30, 2019, through June 30, 2022,” AILA said.

10. Recapture and avoid the loss of unallocated visas

Even if all its recommendations were adopted, it is likely that hundreds of thousands of IVs may be permanently lost, even though many individuals have been waiting years, if not decades, for an IV, AILA said.

In addition, in FY2020, over 100,000 family-based and diversity preference category visas went unused. It is thus imperative that the State Department administratively recapture those visas that were lost, AILA said.

Congress should also take action to recapture those visas unused during the Covid-19 pandemic in addition to the approximately 200,000 visas lost between 1992 and 2019, It suggested.

Congress should enact a statutory fix to ensure that unused visas are properly reallocated moving forward to realize its intent that all available IVs are properly allocated, AILA said.