President Biden Revokes Immigrant Visa Ban Effective Immediately, But Hurdles Remain

The issue

President Biden has revoked a Trump-era presidential proclamation that suspended the entry of certain immigrants until March 31. The revocation takes effect immediately and consulates are permitted to resume processing affected immigrant visa applications. However, due to reduced consular operations worldwide and pent up demand, applicants are likely to see delays in appointment scheduling and adjudications for months to come. Further, many foreign nationals may need to qualify for exceptions to the regional COVID public health bans which remain in place for travel from a number of countries.

Background on immigrant visa ban

The immigrant visa ban affected employment-based, family-based and Diversity Lottery immigrant visas, with limited exceptions for U.S. lawful permanent residents; spouses of U.S. citizens; children under 21 of U.S. citizens and prospective adoptees in the IR-4 or IH-4 visa classifications; foreign nationals seeking to enter on an immigrant visa as a healthcare professional, as well as their spouse and unmarried children under 21; applicants for EB-5 immigrant visas; and those whose entry would be in the U.S. national interest. Other than these categories, no immigrant visas were permitted to be issued under the ban.

Implementation of ban revocation

Following President Biden’s revocation order, the State Department has issued guidance on how it will implement the rescission for applicants currently in the immigrant visa (IV) process and for those previously refused:

Not Yet Interviewed:  IV applicants who have not yet been interviewed or scheduled for an interview will have their applications processed according to existing COVID-19 consular operations frameworks, which could mean reduced visa services and prioritization of visa case types, depending on the post. Applicants may experience delays for these reasons.

Previously Refused:  IV applicants whose petitions remain valid and who were previously interviewed but refused visas due to the IV ban should wait for instructions from the U.S. embassy or consulate where they were interviewed. The Department of State has said it will reconsider these cases and will inform applicants if additional information is needed.

Diversity Visa (DV) 2020 Applicants:  Those holding diversity visas issued in 2020 that are still valid may seek entry to the United States immediately, despite the IV ban visa annotation. Individuals whose DV-2020 visas have expired may not be issued replacement visas. However, those who received diversity visas as a result of orders in the court case Gomez v. Trump may travel to the United States on an expired visa in compliance with the court order. The State Department warns, though, that the court order could still be changed or modified and therefore, these beneficiaries are encouraged to travel as soon as possible.  

Further, a national interest exception exists for DV applicants for the 2020 fiscal year who hold a valid immigrant visa and are subject to the regional COVID-19 public health bans. 

Diversity Visa 2021 Applicants:  DV applicants for the 2021 fiscal year (DV-2021) should wait to be notified of the scheduling of an interview in accordance with the phased resumption of visa services framework.

Regional COVID public health bans may still apply

Regional COVID public health bans remain in place for foreign nationals physically present in Brazil, China, Iran, Ireland, the Schengen Area, South Africa or the United Kingdom within 14 days of attempting entry to the United States. Spouses, children and certain other family members of U.S. citizens and lawful permanent residents are exempt from the regional bans on the basis of their family relationship, so applicants in these categories will not be subject to a regional ban. Other immigrant visa applicants who do not qualify for a separate exception from the regional bans, however, will need to apply for a national interest exception from the consulate in order to be issued a visa.

Nonimmigrant (H/L/J) visa ban

President Biden has left in place the nonimmigrant proclamation suspending the entry of foreign nationals in the H-1B, H-2B, L-1, and certain J-1 categories, as well as related categories for dependents, with exceptions. This ban is scheduled to expire on March 31, 2021; it is not expected to be extended. 

What is next?

Though U.S. consulates are no longer prohibited from issuing immigrant visas based on classification alone, consular operations worldwide remain reduced due to COVID-19 public health measures. Pent up visa demand exists due to these measures as well as from IV applications delayed or prevented by the travel ban, making visa application backlogs likely to continue. In addition, COVID regional public health bans remain in place and if applicable, must be overcome in order for a U.S. consulate to issue a visa. Applicants who are no longer subject to the immigrant ban may see their cases move forward, but should expect delays as consulates continue to phase in routine services and work through backlogs. Those previously refused under the IV ban should await further instruction from the U.S. consulate that handled their application.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.