Biden revokes immigrant ban: 10 reasons why visas are not coming soon

I

N his first 30 days, President Joe Biden has issued at least 30 executive orders, including the revocation of several antiimmigrant proclamations, issued by now-citizen Donald Trump; the travel ban on nationals from Muslim majority countries and Africa; requiring noncitizens to be included in the census and restoring the benefits of the Dreamers – minor children brought to the US as minors under the Deferred Action for Child Arrivals (DACA) program under the Obama administration.

Immigrants in and outside the United States (US), however, waited with bated breath when the ban on immigrant admissions would be revoked, allowing qualified and eligible applicants to get their visa interviews at consular posts overseas and adjustment applicants get to be interviewed and subsequently be issued their green cards.

On February 24, the came down.

President Biden ordered the revocation of Trump’s Presidential Proclamation 10014 (PP 10014), banning immigrants from being admitted into the US even if they have paid all the fees and met all the requirements, including proving that they will not become public charge.

Section 1 of PP 10014 suspended and limited “entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.”

Section 2 defined who are banned: all immigrants outside the United States; who do not have an immigrant visa or valid travel documents on the date of the proclamation. Exempted were the spouse and minor children of US citizens, certain members of the US Armed Forces and those whose admission will be to the national interest of the United States.

President Biden’s order revoked Section 1 of PP 10014, section 1 of Proclamation 10052 and section 1 of Proclamation 10131, which added nonimmigrants seeking work visas (H-1B, H-2B, L-1 and some J-1 order categories) to the list of aliens to be banned from entry into the United States.

PP 10014 was issued on April 23, 2020; amended on June 22, 2020, extending the ban. Just before he left – and lost the election – Trump extended the ban to March 31, 2021.

Until February 24, immigrants waiting for their visa appointments at embassies and consular posts worldwide were on tenterhooks.

Now that the ban has been lifted, will immigrants be able to get their visas soon, say, in the next 30 to 120 days?

Here are the 10 reasons why not. Time gap between the issuance of the proclamation and issuance of a final rule

The order must be published with the Federal Register and give time for public comments before a final rule could be issued. This could take anywhere from 30 to 60 days.

2. Polishing of and issuance of regulations by the State Department and the Department of Homeland Security

The final rule would have to be added to the specific sections of the State Department’s Foreign Affairs Manual while the US Citizenship and Immigration Services (“USCIS” under the Department of Homeland Security) would have to include the new regulations in the appropriate federal statutes up to the policy manuals.

3. Training of officers on how to adjudicate cases based on the new regulations spawned by the proclamation

4. Only general guidance given The day after the proclamation, the State Department website had issued the general guidance. Affected immigrants were divided into two groups:

a) Not yet interviewed: Immigrant visa applicants, who have not yet been interviewed or scheduled for an interview, will have their applications processed according to our existing phased resumption of visa services framework.

b) Previously refused: Immigrant visa applicants, whose petitions remain valid and who were previously interviewed but refused visas due to PP 10014, should wait for instructions from the US embassy or consulate where they were interviewed. The Department of State will reconsider cases that were previously refused because of PP 10014 and will inform applicants if additional information is needed.

Essentially, the magic phrase is, “Wait for instructions.”

Covid situation Embassies or visa-issuing posts would have to decide whether to accept applicants for interview given the quarantine and travel protocols in the country where the post is located.

The common announcement at all embassies and visa-issuing posts, including the US embassy in Manila, states the following: “The Department of State suspended routine visa services worldwide [on] March 2020 due to the Covid-19 pandemic. [On] July 2020, US embassies and consulates began a phased resumption of routine visa services. The resumption of routine visa services is on a post-by-post basis, in coordination with the [State] Department’s framework for safely returning our workforce to department facilities.”

6. Staff shortage at the State Department’s National Visa Center (NVC)

Interview notices and setting of appointments at embassies are generated by NVC to immigrant visa applicants who have paid all the fees and submitted all documents required. Because of the continuing high rate of Covid-19 cases in the US, NVC had been asking the public to limit their requests for information about their cases due to staffing shortage. NVC staff reviews cases approved by the USCIS and forwarded to NVC.

On Saturday last week, NVC has this announcement on its website: “Current case review time: As of 22-FEB-2021, we are reviewing documents submitted to us on 16-NOV-2020.”

If an immigrant visa applicant’s petition was approved on Nov. 17, 2020, then his or her case is still not part of the review queue.

7. Millions of immigrant visa applicants waiting for their visa interviews

On November 2020, the State Department announced that there are 3,978,487 immigrant visa applicants worldwide. And these are only in the family-preference categories. The immediate relatives of US citizens (spouses, minor children and parents) are not subject to quota.

However, NVC still has to process their immigrant visa applications just as everybody else. A case number must be assigned to each approved immigrant visa petition from the USCIS regardless of category, including the five employment-based classification.

8. Hundreds of thousands added to the millions waiting due to the ban

The American Immigration Lawyers Association estimated that about 120,000 visa applications were either lost or affected by the ban. Forbes quoted on February 24 immigration attorney Curtis Morrison, who has represented Diversity Visa winners, that: “Biden faces a backlog of nearly 500k documentarily qualified visa family-based applicants who were held back from getting interviews under the ban.”

The State Department’s published Visa Statistics show that before the issuance of PP 10014, an average of 40,000 immigrant visa were being issued monthly, including an average of 1,560 at the US embassy in Manila.

The month after (April), immigrant visas issued dropped to just 1,521 worldwide and only 12 immigrant visas issued to Philippine applicants.

9. Need to update expired documents and requirements

Once an immigrant visa applicant receives a case creation letter from NVC, he/she has to pay the visa fees before completing the affidavit of support form, DS 260 immigrant visa application form for each applicant and upload the civil documents, establishing continuing eligibility for the visa category.

Part of the documentation is the NBI and/or police clearance. Due to Covid-19, appointments may not be scheduled soon.

For those who were refused their visa applications but have undergone medical examination, a new medical examination – and costs associated with it – must be taken again.

Aging out of children or death of the petitioner

Minor children (below 21) are eligible for issuance of visas as derivative beneficiaries. However, any child who turns 21 is no longer considered a minor. While the State Department may accept the ban and the pandemic as reasons for the delay in visa appointments, the law is clear that to be considered a derivative beneficiary, a child must be below 21 years of age when the visa is issued.

There are of course certain exemptions or considerations.

A child may remain a derivative beneficiary under the Patriot Act. The State Department’s Foreign Affairs Manual reflects Section 24 of the Act that “for the purposes of adjudicating such petition or application for an immigrant visa the child would have “an extra 45 days beyond his or her twentyfirst birthday for the purpose of adjudicating only that petition or application” and still be issued an immigrant visa.

The death of the petitioner automatically revokes the petition, pandemic or not. The principal applicant may request for reinstatement for humanitarian considerations.

Then, there is the Child Status Protection Act (CSPA).

But that is another law passed in August 2002 and subsequent regulations issued that merit another column for another day.

Besides, waiting for eligibility under CSPA would be the 11th reason why a visa appointment may not be coming anytime soon.