Introduction

On March 6, 2017, President Donald Trump signed an Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States” (“Travel Order”) [PDF version]. This Executive Order revokes and replaces an Executive Order of the same name issued by President Trump on January 27, 2017 [PDF version].

In this article, we will examine the portion of the Travel Order that indefinitely suspends the Visa Interview Waiver Program. Please see our full articles to learn about the Travel Order’s provisions for the suspension of entry of nationals of six countries [see article] and the suspension of refugee determinations [see article]. Furthermore, please see our detailed article discussing the rationale behind the Travel Order and its directives for future changes to immigration policies and procedures [see article].

What is the Interview Waiver Program?

Before examining the Visa Interview Waiver Program, we must first assess section 222(h)(1) of the Immigration and Nationality Act (INA), which sets forth the visa interview requirement. In general, the statute requires that individuals applying for visas who are between the ages of 14 and 79 submit to visa interviews in order to procure visas.

The statute sets forth certain discretionary exemptions. These exemptions and waivers are distinct from the “Visa Interview Waiver Program.” Section 222(h)(1)(A) allows for certain individuals seeking diplomatic, North American Treaty Organization (NATO), and C3 nonimmigrants visas to be exempted from the visa interview requirement. Section 222(h)(1)(B) allows for consular officials to exempt a subset of individuals who are seeking to renew a visa in the same classification not more than 12 months after the previous visa expired. Section 222(h)(1)(C) gives discretion to waive the visa interview requirement generally if such waiver is determined by the Secretary of State to be in the national interest, or otherwise necessitated by “unusual or emergent circumstances.” Section 222(h)(2) limits the scope of section 222(h)(1), specifying cases where a discretionary waiver cannot be granted.

The Department of State (DOS) began implementing the Visa Interview Waiver Program in 2012, and fully implemented it in 2014. It allowed for discretionary waivers to be granted for individuals seeking to renew nonimmigrant visas in certain categories whose visas had expired more than 12 months prior to the application, but fewer than 48 months. Although such waivers were discretionary, the Visa Interview Waiver Program greatly expanded the number of visa renewal applicants who were eligible for visa interview waivers.

Please see our full articles on the Visa Interview Waiver Program [see article] and Drop-Box Visa Renewal Applications in Russia [see article] to learn about the background of the Program and how it worked. We have added addenda to both articles indicating the suspension of the Visa Interview Waiver Program for clarity. Our main article on the Visa Interview Waiver Program contains information on statutory exemptions and waivers that existed before President Obama’s expansion of visa interview waivers [see section].

Suspension of the Interview Waiver Program in the Travel Order

In section 9(a) of the Travel Order, President Trump ordered the Secretary of State to immediately suspend the Visa Interview Waiver Program, and to ensure compliance with section 222 of the Immigration and Nationality Act (INA). The Travel Order describes section 222 as requiring “that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to certain statutory exceptions.” Generally, section 222 of the INA sets forth the visa interview requirements.

Section 9(a) of the Travel Order makes a specific note that the suspension will not apply to any foreign national traveling:

On a Diplomatic or diplomatic-type visa;
On a North Atlantic Treaty Organization (NATO) visa;
On a C2 visa for travel to the United Nations [see article];
On a G1, G2, G3, or G4 visa;
For purposes related to an international organization designated under IOIA; or
For purposes of conducting meetings or business with the United States Government.

A number of the above exemptions are already specified in section 222(h)(1)(A) of the INA. The Travel Order adds additional aliens who are exempt from the Travel Order’s suspension of the Visa Interview Waiver Program.

Scope of the Suspension and Guidance

The Travel Order clearly suspends the Visa Interview Waiver Program that began in 2012 and was fully implemented in 2014. This means that individuals seeking to renew nonimmigrant visas that expired between 12 and 48 months prior to the application, except in the specifically exempted categories in section 9(a) of the Travel Order, are no longer exempt from the visa interview requirement. Additionally, the Travel Order will now require first-time Argentine and Brazilian applicants for tourist visas to submit to interviews [link].

The Travel Order appears to leave in effect the limited discretionary waivers allowed by section 222, although the DOS has yet to issue department-wide guidance. There is limited existing guidance regarding the implementation of the suspension of the Visa Interview Waiver Program under the January 27 Order. The only difference regarding the policy covering the Visa Interview Waiver Program between the January 27 and March 6 Travel Orders is that the January 27 version did not specify classes of aliens who are exempt from the suspension.

The U.S. Information Service for China website stated in a news alert regarding the original January 27, 2017 Travel Order, which also included a suspension of the Interview Waiver Program, that “the drop-off service (interview waiver) criteria has changed from 48 to 12 months” [link]. In a post dated January 28, 2017, the U.S. Embassy in Ireland stated that “Irish citizens renewing the same classification of visa not more than 12 months after the date on which the prior visa expired may still be eligible to renew their visa without an interview” [link]. Also regarding the January 27 Travel Order, the U.S. Embassy in Argentina took the position that renewal applicants described in the text of section 222 may be eligible for interview waivers [link]. These are three examples of the initial suspension being interpreted to not weigh against the issuance of waivers in certain renewal cases that are less than 12 months since visa expiration, as specified by section 222. However, the American Immigration Lawyers Association (AILA) expressed the belief that the suspension under the March 6 Travel Order would apply to aliens described as being eligible for interview waivers under section 222 who are seeing renewal within 12 months (see AILA Doc. No. 17030660, Mar. 6, 2017).

An individual who believes that he or she may be eligible for a waiver under the statutory guidelines should contact his or her local U.S. Embassy or Consulate for more information. Furthermore, an individual may consult with an experienced immigration attorney regarding information about the implementation of the Travel Order and how it may affect his or her specific case. Policies and procedures may vary by embassy or consular section. We will update the article when and if more detailed information becomes available.

Expansion of the Consular Fellows Program to Mitigate Effects

In order to counteract the effects of the suspension of the Visa Interview Waiver Program, section 9(b) of the Travel Order directs the Secretary of State to immediately expand the Consular Fellows Program “[t]o the extent permitted by law and subject to the availability of appropriations…” The Consular Fellows Program allows the Department of State to hire Consular Fellows to serve alongside Foreign Service Officers [link].