The back and forth between the Trump Administration and the legal system has attracted a lot of attention over the past several months. As of this writing, the court challenges have resulted in only a limited ban on visitors from six Muslim majority countries, and this will be taken up again in the Supreme Court and others this fall.
But is that all there is to it? Behind the public fray, several other steps taken by the Administration developments have impacted Consular operations around the world. And these are not likely to be challenged or reversed anytime soon.
While the future of the travel ban, proposals to amend the Immigration and Nationality Act and the President’s decision to end the Deferred Action for Childhood Arrivals (DACA) program face uncertain prospects in the courts and Congress, the Trump Administration has used its executive power quietly and effectively to make it more difficult for travelers from around the world to enter the United States.
State Dept Instructions to Embassies: Confusing and Inconsistent
The on-again, off-again status of the executive orders signed by the President in January and March has made it extremely difficult for consular officers to know how to process visa applications from citizens of the six countries identified in the orders, even as their constitutionality remains unclear. Guidance from the Department for consular officers on how to implement these orders has been issued, retracted, reissued, and redefined in reaction to court rulings. As a direct consequence, risk-averse consuls cannot rely on clear and consistent guidance on how to handle these cases, and may hesitate to approve visas for individuals who might otherwise qualify but who might be impacted by the Supreme Court’s eventual ruling on the executive orders. Similarly, the administration’s focus on enhanced border security will inevitably cause more visa cases to result in administrative processing delays everywhere, and not just those from the countries of concern.
State Department Hiring Freeze Impacts the Visa Function
Meanwhile, the Administration’s hiring freeze is likely to have a disproportionate impact on consular visa functions abroad. This is because most American consular staff are relatively new hires who often begin their careers with an assignment to a consular section overseas. If there are no or too few officers to fill openings, the wait for consular services will lengthen. We are already seeing evidence of this as wait times for interview dates, particularly in busy embassies, have lengthened over the summer. And staff shortages impact all visa applicants, not just those from the countries of concern. There is no court of appeal for this problem, and the longer it persists, the longer it will take to correct when hiring eventually resumes.
“Protecting American jobs” as a new rationale for employment based visa denials?
Recent changes to portions of the 9 FAM guidelines for consular officers following the President’s Executive Order 13788, “Buy American Hire American,” explicitly charges them with taking into consideration the impact on U.S. job holders when adjudicating applications for employment-based nonimmigrant visas in the E, L, O and P visa categories. It is not possible to come up with a one-size fits all matrix for consuls to utilize in applying this guidance to individual visa applications, but one thing is clear—the new guidelines empower consular officers to deny visas to an applicant if they believe that issuing the visa to him or her will harm U.S. workers in any way. Consuls who may be skeptical about the merits of a visa application in one of these categories, or who simply do not like or approve of a particular applicant and/or the type of visa for which s/he is applying, have been given authority to refuse applicants in these categories, regardless whether the applicant has been approved by the Citizen and Immigration Service (CIS), which adjudicates such visas. Denial rates in these categories may increase as a result.