• Matt Hughes

What can the State Department do to get visa processing back on track?

The American Immigration Lawyers Association put together a well thought-out policy paper on the visa backlogs created by the pandemic at the State Department and laying out some good ideas to address them. Government bureaucracies, like teenagers, regularly ignore good advice, but we can always hope it will be heeded from time to time. Here are the headline suggestions:

  1. Reopen America. The various travel bans are not based on science. There are other approaches that could prevent viral transmission with lesser impact on travel.

  2. Resume stateside processing of visa renewals. The Department has the legal authority and means to do so.

  3. Expand visa interview waiver eligibility.

  4. Automatically extend visas that expired during the pandemic by 24 months. DoS already allows this for passports and DHS/CBP has indicated LPRs can return on certain expired documents.

  5. Maximize staffing at posts to push through immigrant visa backlogs.

  6. Allow virtual immigrant and nonimmigrant visa interviews. Low fraud-risk applicants could be funneled into this program.

  7. Use U.S. based consular officers and other trained and deputized staff to adjudicate visas remotely.

The Bureau of Consular Affairs is probably concerned that some of these changes would demonstrate the huge cost savings of adjudicating visas remotely from the United States. If implemented, some of these changes would undoubtedly become permanent and would have a massive effect on the culture and makeup of the Foreign Service. The Department also likely sees this re-awakening the 9/11 era debate over whether to wrap the Bureau of Consular Affairs into DHS, which would mean a massive loss of revenue for the Department of State. Finally, the Department is probably troubled about what domestic processing would do to the doctrine of consular non-reviewability, which has increasingly come under scrutiny in recent years.

I, for one, would hate to see consular services become DHS-ified, turning the relative efficiency of consular processing (for all its faults) into yet another broken, inward-looking, torpid domestic immigration apparatus while significantly reducing America's diplomatic footprint overseas. And the concerns of non-reviewability might prove to be well founded, though it seems unlikely that the federal courts would want to open the doors to such a massive pool of potential litigants.

Pragmatism would argue that not all slopes are slippery and that there might be a way to increase America's domestic consular capacity without turning Consular Affairs into another slow-moving tentacle of DHS.

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