Visa Interview Waivers and Drop Box Submissions

 

President Donald Trump's March 6, 2017 Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry into the United States” suspended the Visa Interview Waiver Program implemented in 2014 under the Obama Administration. Please see our full article to learn more about the suspension [see article]. The suspension affects the section of this article titled “Interview Waivers and Interview Waiver Program” and all of its subsections.

Introduction: Interview Waiver Program

Interview Waiver ProgramMost nonimmigrant visa applicants are required to appear at their U.S. Embassy or Consulate for a visa interview. There are limited exceptions to the interview requirement found in 22 C.F.R. 41.102(b) for diplomats and those seeking to renew certain nonimmigrant visas. In 2012, the Department of State (DOS) announced a “Visa Pilot Program” [see fact sheet] which would broaden the circumstances in which a nonimmigrant visa applicant may be considered for a waiver of the visa interview requirement.1 The Visa Pilot Program was made final as the Interview Waiver Program when it was included in revisions to the DOS's Foreign Affairs Manual (FAM) in 2014.2 In this article, we will examine the regulations and agency guidance to see the rules for when a nonimmigrant visa applicant is eligible to make a “drop box” submission to renew a nonimmigrant visa in lieu of appearing for an interview.

Background: Interview Requirement and Other Exceptions

Eligible for Waivers of the Interview Requirement

The nonimmigrant visa interview requirement is found in section 222(h) of the Immigration and Nationality Act (INA). The statute delegates to DOS the authority to waive the interview requirement in limited circumstances. 22 C.F.R. 41.102(b) allows for waivers for the following nonimmigrant visa applicants so long as they do not (1) present national security concerns requiring an interview and (2) are not subject to 22 C.F.R. 41.102(d):

  1. Applicant under 14 years of age;
  2. Applicant over 79 years of age;
  3. Applicant classifiable as A-, C2, C3 (with exceptions), G-, or NATO- who is applying for visas in one of those categories;
  4. Applicant applying for a diplomatic or official visa described in 22 C.F.R. 41.26 or 41.27;
  5. Applicant seeking to renew a visa that expired within the previous 12 months “who is seeking the re-issuance of a nonimmigrant biometric visa in the same classification at the consular post of the applicant's usual residence (so long as the consular officer has no indication that the applicant is ineligible or did not comply with U.S. immigration laws or regulations);
  6. Applicant for whom a waiver is determined to be warranted in the national interest or because of unusual circumstances.

Mandatory Interview Grounds

Notwithstanding 22 C.F.R. 41.102(b)(1)-(6), persons listed in 22 C.F.R. 41.102(d) are ineligible to have the visa interview requirement waived:

  1. Any nonimmigrant visa applicant who is not a national or resident of the country in which he or she is applying (except for diplomatic visa applicants eligible for waivers under 22 C.F.R. 41.102(d)(3) or (4));
  2. Any nonimmigrant visa applicant who was previously refused a visa, is listed in CLASS, or otherwise requires a Security Advisory Opinion (unless: (i) the refusal was temporary and the refusal was subsequently overcome; (ii) the alien was found inadmissible, but the inadmissibility was waived; or (iii) the alien is eligible for a waiver under 22 C.F.R. 41.102(d)(3) or (4) for diplomatic visa applicants);
  3. Any nonimmigrant visa applicant from a country designated by the Secretary of State as a state sponsor of terrorism (regardless of age), or in a group designated by the Secretary of State under section 222(h)(2)(F) (a member of a group or sector determined by the Secretary of State to (i) pose a risk of submitting inaccurate information in order to obtain a visa; (ii) have historically had applications denied at a higher than average rate; or (iii) pose a security threat to the United States). However, those eligible for waivers under 22 C.F.R. 41.102(d)(3) or (4) are exempt from these mandatory interview provisions.

As of May 11, 2015, the three designated state sponsors of terrorism are Iran, Sudan, and Syria [see list].3

9 FAM 403.5-6 adds to the list other situations in which consular officers are instructed that an interview is mandatory:

  • Any applicant who a consular officer believes should be interviewed;
  • Any applicant who has been randomly selected for an interview (1% of all applicants seeking a visa renewal 12-48 months after entry and 1% of Brazilian-eligible applicants are randomly selected for interviews);
  • Any applicant who is from what is believed to be a high-threat or high-fraud area;
  • Any applicant who is believed to be a “person of concern”;
  • Any applicant who has an apparent or potential ineligibility in CLASS, IDENT, NGI, KFE, PATRIOT, or another namechecking system;
  • Any applicant for whom there is an indication of ineligibility for the visa sought or of noncompliance with U.S. immigration laws and regulations.

Similar to the regulations, those seeking diplomatic visas may have their interviews waived in the discretion of the consular post notwithstanding any of the above grounds for ineligibility for a waiver.

Interview Waivers and Interview Waiver Program

The Interview Waiver Program was created to streamline the application process for nonimmigrant visa applicants who are seeking to renew a nonimmigrant visa that expired at least 12 months, but fewer than 48 months, before the renewal application. In this sense, the Interview Waiver Program can be seen as building off 22 C.F.R. 41.102(b)(5) which functions similarly for those seeking to renew a visa less than 12 months after its expiration. The mandatory interview grounds listed in 22 C.F.R. 41.102(d) apply to the Interview Waiver Program.

We will use guidance found in 9 FAM 403.5 (U) to review the rules for the Interview Waiver Program as well as for under 22 C.F.R. 41.102(b)(5). We will also examine the Interview Waiver Program's special provision for first-time Brazilian visa applicants.

Before examining the waiver provisions in detail, it is important to bear in mind that the waiver provisions are not binding. A consular officer may decline to waive the interview if he or she determines that a visa interview is necessary. Furthermore, applicants under the age of 14 and over the age of 79 are generally eligible for waivers when applying for any nonimmigrant visa, unless the consular officer decides that an interview is necessary.

Visa Renewals (Within 12 Months)

9 FAM 403.5-4(A)(3) contains the FAM guidance for implementing 22 C.F.R. 41.102(b)(5). The FAM states that consular officers may consider waiving the interview for a nonimmigrant visa applicant if:

  1. He or she is seeking to renew a visa that expired not more than 12 months before and the visa that he or she is seeking is in the same classification as his or her prior biometric visa (i.e., same visa class and category (principal or derivative));
  2. He or she is applying in the consular district of his or her normal residence; and
  3. He or she has been subjected to all appropriate biometric visa requirements.

With regard to the first point, the FAM notes as an example that if an applicant who was an E2 spouse is applying for a visa as an E2 principal, he or she would be required to undergo a visa interview even if the other requirements are met. This applies for principals in derivatives in other classifications as well.

The third point renders ineligible for waivers those who were not subjected to the current biometric requirements when they last obtained a visa. In general, if the applicant last obtained a visa before he or she was 14 years of age, he or she will be ineligible for an interview waiver. In most cases, applicants who last obtained a visa before the current fingerprinting requirements will also not be eligible for an interview waiver.

Visa Renewals (12-48 Months)

The requirements that the applicant apply from the consular district of his or her normal residence and that the applicant have been subjected to all appropriate biometric requirements apply to renewals 12-48 months after the expiration of a nonimmigrant visa. However, the following classes are not eligible for an interview waiver in if the applicant's previous visa expired between 12 and 48 months before the application:

  • E
  • H
  • L
  • P
  • R

The DOS in Bangladesh has produced a useful checklist that goes through the requirements for the interview waiver program for persons seeking to renew visas that expired less than 48 months before the new visa application (conforms with the FAM and is generally applicable save for references to “Bangladesh” specifically) [see checklist].

Rules for F, M, and J Visa Renewals

9 FAM 403.5-4(A)(5) lists special considerations for F, M, and J visa applicants seeking a waiver from the interview requirement under either of the foregoing provisions.

F and M students may obtain waivers under the 12-month or 12-48 month provisions. In order to obtain a waiver of the interview program, the F or M visa applicant must be renewing his or her visa either to:

  • a. Continue participation in the same program (even at a different institution);
  • b. Attend the same institution (even in a different program).

In order for a J visa applicant to obtain a waiver under either provision, his or her SEVIS number must be the same as it was at the time he or she was previously issued a J visa.

First-Time Brazilian Applicants

9 FAM 403.5-4(A)(4) allows for Brazilians (except in the E, H, L, P, or R nonimmigrant visa classes) to obtain a waiver from the visa interview requirement if:

  • The applicant is a first-time nonimmigrant visa applicant who is younger than 16 years of age or 66 years or older; and
  • The applicant is applying in the consular district of his or her normal residence.

If the applicant is granted an Interview Waiver, he or she may have the fingerprint collection requirement waived (fingerprints would be collected at the Port of Entry).

First-Time Argentine Applicants

The U.S. Embassy in Argentina announced that it is expanding the Interview Waiver Program for certain first-time Argentine applicants for B1 and B2 visas [see FAQ].4 The new provisions came into effect on May 16, 2016. The provisions allows for Argentine nationals applying for the first time for a B1/B2 visa from Argentina to obtain an interview from the visa interview requirement if:

  • The applicant is younger than 16 years of age or 66 years or older; and
  • The applicant has no arrests or prior convictions or violations of U.S. immigration laws.

Application Process and Drop Box Submission Letter

An applicant who may qualify for the interview waiver program and to make a drop box submission must do the following:

  1. Pay the visa application fee and any reciprocity fee (see directions at Embassy/Consulate website);
  2. Complete the Nonimmigrant Visa Electronic Application (DS-160) form;
  3. Follow the steps to schedule an interview with the applicable Embassy or Consulate.

The applicant must ensure that he or she answers the questions in step 3 carefully. If the applicant appears to be eligible for an interview waiver, he or she will receive a drop box submission letter. The drop box submission letter will include directions for the applicant regarding the documentation that he or she must submit and the drop box locations that he or she must submit the documents in. It is important to note, again, that the Embassy or Consulate may require an interview if it deems such an interview necessary.

Conclusion: Visa Interview Waiver Program and Drop Box Submissions

This article offers a general overview of the applicable regulations and DOS guidance regarding the visa interview program and drop box submissions. However, it is important to note that the specific policies and protocols vary by Consular Office and U.S. Embassy. Please see the following links (all retrieved on May 11, 2016) to see the rules in different Consulates:

An applicant must always understand the nonimmigrant visa application process where he or she is applying for a visa from. If an applicant has any questions about the interview waiver program or the nonimmigrant visa application process in general, he or she should consult with an experienced immigration attorney. In order to be eligible for a drop box submission, the applicant must ensure that he or she fills out the Form DS-160 carefully and accurately. Finally, a nonimmigrant visa applicant should never assume that he or she will be granted a waiver. It is always well-advised to plan ahead and be prepared for the possibility that the local Embassy or Consulate may require an interview.

______________________

  1. Fact Sheet, DOS, Visa Pilot Program (Jan. 19, 2002)
  2. 16 No. 3 Immigr. Bus. News & Comment, DOS Makes NIV Interview Waiver Program Permanent, (Feb. 1, 2014)
  3. DOS, “State Sponsors of Terrorism,” (retrieved May 11, 2016)
  4. U.S. Embassy in Argentina, “Frequently Asked Questions (FAQs) for the Expanded Interview Waiver Program in Argentina,” (May 2016)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 842, Print. Treatises & Primers.