“I think the surrounding consulates are willing to absorb extra work, and they’ll do it,” said Loren Locke, another former consular officer. “Is that going to magically give them the capacity to do it as fast as everybody would like? No, because they still have their own backlogs. They still have their own urgent cases.”
Some visa applicants may be able to get an expedited appointment, but those circumstances are limited. A foreign-born doctor helping COVID-19 patients may be granted an expedited appointment to return to the U.S. after traveling abroad, but a foreign citizen who works at a U.S. tech company and could work remotely would likely be denied, lawyers said.
“It doesn’t matter how critical your reason was to leave. It’s how important it is that you go back that a consular officer actually looks at,” said Loren Locke, a former consular officer. “‘I wanted to go home, and now I want to go back to my job.’ That’s not an emergency.”
A federal judge in California ruled in favor of the Dvash-Banks family in 2019, finding the citizenship statute “does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents.”
The other couple’s case remains pending in federal court in New Jersey, where they now reside, according to Morris, one of their lawyers.
Loren Locke, an immigration lawyer and former State Department consular officer, said the change from the department’s long-standing interpretation is “a pretty exciting development, and an overdue one.”
“It really blows it open. There will be a lot more families,” she said.
But former officials acknowledged that withdrawing a proclamation billed as a way to help U.S. workers, at a time when many Americans are out of work, could be tricky politically.
“The reason the Muslim ban got attention first is it’s just a more visible issue,” said Loren Locke, an immigration attorney and a former State Department consular officer. “These other proclamations were less controversial, even though they were hugely — and continue to be hugely — impactful.”
White House Press Secretary Jen Psaki said Thursday the president is expected to take additional immigration-related policy actions next week. She nor another White House spokesperson offered further details.
But former officials acknowledged that withdrawing a proclamation billed as a way to help U.S. workers, at a time when many Americans are out of work, could be tricky politically.
“The reason the Muslim ban got attention first is it’s just a more visible issue,” said Loren Locke, an immigration attorney and a former State Department consular officer. “These other proclamations were less controversial, even though they were hugely — and continue to be hugely — impactful.”
Ending a proclamation aimed at suspending foreign citizens “who present risk to the U.S. labor market,” as the proclamations are titled, could even prove divisive among the pro-labor factions of the Democratic party.
"Filing October 1st versus October 2nd makes a huge difference, but there's not time between September 24th and September 30 to prepare the [public charge questionnaire]," said Loren Locke, an immigration lawyer at Ford Harrison and former consular officer.
"I really think that USCIS has become so burdened with the complexity of its own processes that it's really in a bind now to adjudicate anything in a timely manner," said Loren Locke of Ford Harrison, a former consular officer. "This is adding complexity, so I would think it's going to add time."
Such visa delays caused by additional requirements — which USCIS predicted would impact more than 2.1 million people — can bring steep consequences for foreign workers, who could find themselves unable to renew driver's licenses or enroll their children in school without necessary visa approvals, she explained.
"It's really disruptive in the United States to be a person who relies on driving a car, and then lose your driver's license," she said. "It makes it really hard for these families to function."
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But Locke, the former consular officer, questioned the value of additional biometrics collection when USCIS already takes fingerprints from visa applicants.
"I find it incredibly invasive," she said. "I do not understand why the methods they already have are not enough. I don't think it's common at all for fingerprints to be ambiguous."
Loren Locke, an immigration attorney at FordHarrison LLP and former consular officer, told Law360 that the new exemptions will likely still keep entry-level hires blocked from entering the U.S. on new visas, but will allow more essential and experienced employees to take jobs in the U.S.
"It feels like a real unraveling of the proclamation," she said. "I think this looks like the government bending to pressure from the private sector."
“‘It's going to actually remake the body of immigrants coming to the United States,’ immigration attorney Loren Locke told Law 360.”
“A 60-day pause on green cards overseas may do little to alter the makeup of U.S. immigration long term, but if the ban is extended, "it's going to actually remake the body of immigrants coming to the United States," said Loren Locke, an immigration attorney at FordHarrison and former consular officer.”
"There are just so many things in immigration law that are so strict and unforgiving about paperwork that we don't know yet how it will all be fixed on the back end," said Loren Locke, an immigration lawyer at Ford Harrison and former consular officer. "There are going to be a lot of people who need fixing."
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But that's not an option for everyone, particularly if an individual's country of citizenship is also included in the ban, limiting which other countries they could visit for two weeks. Locke said she has a Chinese client who had planned to spend two weeks in the Netherlands, but those plans were foiled when the country was added to the ban.
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"There are a lot of emergency scenarios like that that immigration practitioners are dealing with this week and last week," said Locke, who had a client on an O-1 visa for people with extraordinary abilities get stuck in the U.K.
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"It's been cheaper, faster and with less pushback from the government to actually travel and get a new visa, come in with that, rather than get an extension of status from inside the U.S.," said Locke, noting that USCIS has ramped up scrutiny of employment-based immigration requests under the Trump administration.
But with consular offices closing, and travel becoming riskier as governments impose entry restrictions and urge people to stay home to mitigate the virus' spread, "the calculus has completely changed," Locke said.
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"We're particularly poorly situated for a knee-jerk transition to digital. We're just not ready at all," said Locke.
The roll-out has also been "shoddy" and "last-minute," said Loren Locke of Ford Harrison LLP, a former consular officer, leaving immigration lawyers and applicants — some of whom may have had their interviews, the final step of the process, scheduled months in advance for next week — guessing at how to prepare.
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Locke predicted that the confusion will lead to inconsistent decisions across consulates, and even between officers at the same post, as to what amount of information will be enough.
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But in its current state, the form, while informative, is not designed for consular officers to make predictions about future medical conditions, on top of an economic analysis of what those conditions might cost, Locke said.
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Both Locke and Strashnoy said that consular officers are not qualified to make those assessments, which could lead to improper denials.
"Some consular officers may not be qualified, they may not have enough time to make a fully thought-out decision because their workload is very heavy," Strashnoy said. "So it creates a lot of pressure to do things relatively quickly. And when you do it relatively quickly, sometimes, you don't make the right decision."
And moreover, said Locke, this additional burden and time spent reviewing an applicant's medical records and anticipated costs will come at the expense of other factors an officer weighs during an interview, including evaluating whether a marriage is legitimate or whether an applicant could pose a national security threat.
"I hate to see any changes that distract the consular office from the primary duty of protecting the security of the United States," Locke said.
To get answers, I turned to Google. But I soon realized I was out of my depth and should instead talk to actual, real-life experts. I then reached out to two immigration attorneys: Joseph Rosen of Immigration Law Group, P.C. and Loren Locke of Ford & Harrison LLP.
“It’s really all very convoluted,” Locke told me toward the end of our phone conversation on the topic. So buckle up, Five Stripers, it’s time for a rank amateur to dive head-first into the complex world of immigration law!
"I expect that the U.S. consulates in India are going to be particularly affected because they will [potentially] have a lot of people that fall into this extra screen, and they have a lot of people that want to come here," said Loren Locke of Ford & Harrison LLP, who formerly served as a consular officer in Mexico.
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In general, Locke said, this could be a step toward President Donald Trump's goal of "extreme vetting."
Going through a visa interview can be a nerve-wracking process, especially if a foreign citizen knows that a company is counting on her to come to the U.S., or relatives are eagerly awaiting her arrival. Law360 offers seven tips to make sure your client feels prepared when she steps up to the consular officer's window.
Many people might think the visa process ends when a petition is approved by U.S. Citizenship and Immigration Service, but that's far from the case. Visa hopefuls must still submit documents to the U.S. Department of State and appear for a visa interview at a U.S. embassy or consulate.
As one former consular officer put it, the interview setting isn't exactly a "five-star experience," given its similarity to a "big bank with teller windows that are separated with two inch bullet proof glass." But just because the setting is stress-filled doesn't mean your client has to be, thanks to these expert tips.
Paint a Picture of What the Interview Will Be Like
If your client has never set foot inside a U.S. embassy or consulate, it's good idea to let them know what to expect, according to Loren Locke of Seyfarth Shaw LLP. This is key because when people hear the word "interview," they tend to picture sitting at a desk and having a conversation, which often isn't going to be the case, she said.
"Typically, you're standing at a counter, talking to someone through a big thick piece of glass, and the whole waiting room is right there behind you," Locke said. "There could be hundreds of people sitting there and looking at your back."
Walking into the embassy can also be stressful, as it feels like going through a "super strict" airport security screening, according to Jeff Tunis, a former senior consular officer. Tunis recommended not bringing extra devices or items to the embassy, as applicants will likely have to give them up, before being sent to a waiting room, where they might have to wait for up to two hours.
"They should get a good breakfast, they should relax, [and] they should expect to have the wait," Tunis said.
Attorneys might also want to warn applicants that consular officers aren't trying to be rude — rather, they're looking a multiple security screens, and trying to keep interviews on track, experts said. The interview itself only lasts about two to five minutes, and Tunis said at his last post in Jakarta, officers had to handle about 120 interviews each morning.
Newer officers might also be less inclined to make the experience friendly because they're preoccupied with not providing visas to people who pose security threats, in light of the Sept. 11, 2001, attacks, according to Tunis.
Run Through Possible Interview Questions
After describing the interview process, it can be helpful to run through a few practice questions, said Locke, who usually preps visa applicants over the phone for their interviews.
"I usually start with a real softball, such as, 'why did your company select you for this transfer?'" Locke said.
If a client downplays his abilities — which happens, because not all cultures encourage bragging as much as the U.S. — Locke will tell him that the interview isn't about being polite, but about showing he meets the legal standard for admission. Clients usually give better responses after being prodded into talking about their achievements and why the company is pushing for them, she said.
"So, usually they take to heart, 'Let's try this, the American style answer,'" Locke said. "And on the second try they do much better."
But coaching clients on exactly what words to say is ill-advised, because it "really freaks people out, and makes them nervous," she said. Still, Locke encourages her clients not to get too technical when describing their jobs, because consular officers can't be assumed to have specialized knowledge about their industry.
Bernard Wolfsdorf of Wolfsdorf Rosenthal LLP added that he tells applicants to be truthful with officers, because credibility is key to interview success — although, he also informs clients that admitting to things like drug use can lead to a finding of inadmissibility.
"A good lawyer does not tell a client to lie," Wolfsdorf said. "It is absurdly stupid to do that, because at the end of the day, these consular officers are very good at spotting liars."
Make Sure They Have Their Docs in a Row
Consular officers may not look closely at an applicant's documents, but it's still good to bring them, attorneys said. These include a passport, proof that the applicant paid her visa fee, an approval notice for work-based visas and a complete copy of the petition that's already been approved by USCIS, Locke said. It's also helpful to bring a one- or two-page resume that outlines the applicant's story, according to Tunis.
Jose Perez, an attorney with Foster, added that it's important to check an individual consulate or embassy's website, because some posts require certain items or procedures.
"Each post will have a consular website, and it is obligatory to go to that consular Web page ... to see what the U.S. consulate at that particular post is going to look at and require," Perez said.
And if a client is asked for something that she doesn't have? Instead of panicking, clients should offer to bring a copy later, or if the document doesn't exist, offer to provide something similar, according to Locke. For instance, if an officer asks for a deed the client doesn't have, an applicant could offer to show utility bills, in order to show proof of residence, she said.
Tackle any Potential Language Concerns
If a visa applicant has an accent that could be difficult for an officer to understand, it's prudent to ask them to slow down while speaking, according to Locke. And if the applicant is struggling with English, and isn't seeking a visa for a job where English fluency is required, it might be wise to have them ask for an interpreter, Tunis suggested.
"Not only will that clear up the communications, it will also slow the pace of the interview down," he said, of requesting a translator. "[The officer] will start to see the applicant as a person, and not just as a 1.5-minute block of time that I have to dispose of and move on to the next one."
Linda Mathews, another former consular officer with roughly 30 years of experience, also noted that prepping a client on vocabulary can be helpful in avoiding linguistic misunderstandings.
Have Applicants Dress for Success and Keep Answers Brief
Attorneys agreed it is important not to forget about the power of looking sharp. Locke tells clients to dress in business attire, and Wolfsdorf emphasized posture — standing respectfully and not putting one's elbow's on the consular officer's window. He also noted that adopting some U.S. mannerisms can play in applicant's favor.
"I encourage people that the American culture likes to see teeth as a sign of smiling," he said, adding that a "dour attitude doesn't work so well."
When it comes to answering a question, it's best to give a "meaty sentence," and leave it at that, according to Locke.
"I recommend, listen carefully to the question, give a complete answer and then stand there in silence," she said. "But ... don't make it a yes or no answer, because that makes you look kind of evasive, and that's absolutely not what you want."
Make Sure You're Prepared for a Possible Denial
Of course, there's always the possibility that a visa could be denied. Alec Wilczynski, who also served as a consular officer and now practices with Philip Levin and Associates, suggests having clients get their interviewer's name, or at least a physical description, in case a complaint needs to be made.
Clients should also write down the questions they were asked and the answers they gave, and request a written denial letter if their case is rejected, according to Wilczynski.
"We do that so that when we have to complain later, which is constant, [we] have something to hang onto," he said.
As who to complain to, it depends on each embassy or consulate, according to Mathews.
"[It] usually takes a little bit of research to find out who the supervisory consular officer is at the post," she said. "Or which person up the chain of command might have, for example, the level of training to actual be able to react to what we're writing them in a proper manner."
Have Applicants Know Their Materials Cold
Finally, applicants should be very familiar with their materials — such as their online nonimmigrant visa application form, or DS-160 — but they shouldn't sound like they're just reciting memorized information, according to attorneys.
"You don't want to be a robot who's reciting passages you've memorized from your support letter, but you should be able to elaborate on any point in your DS-160 or any point in your supporting paperwork," Locke said.
Having applicants discuss their jobs with friends or their spouses for an hour a day can be helpful, as can reviewing the company's support letter while sitting in the consulate's waiting room, she noted.
"You have complete control over how your present yourself," said Locke. "And in the eleventh hour, that's what you can be working on."
Loren Locke, an attorney with Seyfarth Shaw LLP, said her colleagues had reported visa delays for clients all over the world, including in Vietnam, Dublin and Germany. Some visa hopefuls were told of the problem when they showed up for their interviews, while others received an email beforehand, she said. Overall, people have been told the issue may take one or two weeks to resolve, according to Locke.
Loren Locke of Seyfarth Shaw LLP agreed that consular nonreviewability could still be challenged later, after pointing out that Monday's ruling focused more on the rights of a married person within immigration law, much to the disappointment of many onlookers.
"I think there's definitely room for there to be another decision in the future on the issue of consular nonreviewability," Locke said. "This decision really didn't answer our questions, and it did not close that off for the future."