CONSULATES TO REQUIRE INTERVIEWS AS OF AUGUST, 2003

The Department of State has indicated that, as of August 1, 2003, the American Consulates/Embassies will require almost all nonimmigrant visa applicants seeking a visa stamp at the consulate have an interview. This requirement will almost certainly slow processing times for foreign nationals seeking to have their passports stamped with a visa to enter (or return to) the USA. We urge people who will need to go to the consulate to get a visa stamp placed into their passport to allow added time abroad to accommodate that requirement and to check the consulate/embassy web site for the location where application will be made. The Department of State's description of this new rule follows, in part.

SUMMARY: This interim rule brings Department regulations into line with, and allows further expansion of, post-9/11 policy guidance issued by the Department that has increasingly restricted the number of instances in which the interview of a nonimmigrant visa applicant may be waived. The regulation significantly reduces the number and kind of situations in which the usual requirement that a nonimmigrant visa applicant appear before an officer for a personal interview may be waived by the consular officer, while making express the Department's authority to set interview policies centrally. The Department is taking this regulatory action in order to further develop the new legal framework necessary to support a series of steps undertaken in order to more adequately ensure the security and integrity of nonimmigrant visa application and issuance procedures. Upon publication of this rule, certain visa applicants who previously may have had their personal appearance before a consular officer for the purpose of applying for a nonimmigrant visa waived will be required by regulation to make such an appearance to be interviewed. In practice, however, many of these applicants are already being interviewed, based on internal Department guidance or decisions made at consular posts.

EFFECTIVE DATE: This rule is effective August 1, 2003.

What Is the Origin of the Waiver of Appearance Rule?

The Immigration and Nationality Act, section 222(e), requires that all applicants for immigrant visas appear personally before a consular officer, but leaves the question of personal appearance of nonimmigrant visa applicants to be defined by regulation. The Department's regulations state a usual requirement of personal appearance by nonimmigrant visa applicants, but for at least forty years have defined a range of applicants whose appearance may be waived by the consular officer--i.e., granted a ``personal appearance waiver'' or ``PAW.''

What Change Is Being Made?

Because of heightened security concerns in the period immediately following September 11, the Department undertook a thorough review of its visa application and issuance procedures. As a result of that review, consular officers have begun to interview a much larger percentage of nonimmigrant visa applicants than they did prior to September 11, both in response to Department internal guidance and as a result of decisions made at consular posts. Because of the continuing need to ensure that the visa process is focused on security concerns, the Department believes it is desirable to codify the changed practice into regulation and to provide a regulatory basis for further adjusting the interview exemptions through centralized direction, as appropriate. This rule is intended to reflect the current scope and use of consular and Departmental personal appearance waiver authority. This amended version of the regulation generally permits waivers of the interview by consular officers in significantly fewer kinds of cases than the regulation being amended. The one exception is that the regulation raises the age of children who may qualify for consular officer interview waivers from age 14 to age 16. Consular officers will no longer have broad discretion under regulation to grant PAWs with respect to applicants for B, C-1, H-1, I, J and crew visas. In certain circumstances, however, officers will have discretion to grant PAWs for applicants for any category of nonimmigrant visa who have previously been issued a visa in the same category for which they are applying. The amended regulation continues consular authority for granting PAWs to diplomats and officials of international organizations. Further, it will allow the Deputy Assistant Secretary for Visa Services to waive the personal appearance requirement in specific situations, i.e., when the Department determines, centrally, that the waiver would not be inconsistent with homeland security interests. Thus, the regulation effectively shifts to the Department authority to make a number of interview waiver decisions previously made at consular posts.

Which Applicants May Still Benefit From a Consul's Authority To Waive
Personal Appearance?

Under the revised regulation, a consular officer may waive the personal appearance of a visa applicant in six specific categories. These are: (1) Children age 16 and under; (2) persons age 60 years or older; (3) most of the applicants within a class of nonimmigrants classifiable under the visa symbols A, C-2, C-3, G, or NATO (with the exception of attendants, servants and personal employees); (4) aliens applying for diplomatic or official visas, as defined in 22 CFR 41.26 and 41.27, respectively; (5) applicants who within twelve months of the expiration of their previous visa are seeking reissuance of a nonimmigrant visa in the same classification at the consular post of the alien's usual residence, and for whom the consular officer has no indication of any noncompliance with U.S. immigration laws and regulations, and (6) aliens for whom a waiver of personal appearance is warranted in the national interest or because of unusual circumstances, as determined by the consular officer.
Experience shows that applicants in the first and second categories pose very little if any threat to our security. Persons in the third and fourth categories, diplomats and officers or employees of international organizations and their immediate families are ordinarily very well known to embassy staff members, or there is extensive background information available concerning them. In addition, international law, comity and reciprocity with regard to official personnel may appropriately be taken into account. In the fifth category, the previous personal appearance by and interview of the applicant would make it unlikely that further appearance and interview would reveal any basis for refusal. Applicants in the sixth category, except for those cases based on medical issues, will generally be important contacts of embassy officers and therefore well known to the embassy. It is important to understand, however, that, although the consular officer has discretion to waive personal appearance for an individual falling in one of the six categories, waiver is never required.