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Client Alert: Changes to the FAM for E Visa Applicants

In May 2023, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) relating to E visas. In this client alert, we highlight 2 of the most concerning changes.

1. E-3 visas & intent to depart the U.S.

The DOS modified 9 FAM 402.9-8(G), which discusses the intent to depart requirement for E-3 visa applicants. The new language states:

“An E visa applicant is presumed to be an immigrant until the applicant establishes to your satisfaction that they are entitled to E nonimmigrant status. The standards for applying INA 214(b) described in 9 FAM 302.1-2(B) apply to E visa applicants.”

With the addition of this language, consular officers may apply INA §214(b) more often to deny E-3 visa applications because they presume the applicant is an “intending immigrant.”

Our recommendation: E-3 visa applicants should provide sufficient information/documentation to demonstrate that they have strong ties to their home country that will require them to leave the U.S. at the end of their temporary stay.

2. Spouses & children of E visa applicants

The DOS modified 9 FAM 402.9-9, which now treats spouses and children (dependents) of E visa applicants from E Treaty and non-Treaty countries differently.

Consular officers are now instructed to apply the visa reciprocity applicable to the dependent’s nationality and not that of the principal applicant’s nationality, when issuing E visas. 

This is a drastic change from the DOS’ visa policy, which previously stated:

"The spouse and children of an E visa applicant receive the same visa validity and number of entries and are required to pay the same reciprocity fee, if applicable, as the principal applicant."

So, what would this look like?

Where the E-2 principal and their spouse are Italian, both applicants would receive visas valid for 60 months.

Where an E-2 principal is Italian and their spouse is Bangladeshi (Bangladesh has an E-2 Treaty), the Italian principal would receive visa for 60 months while the Bangladeshi spouse would receive a visa for 3 months.

Where an E-2 principal is Italian and their spouse is Vietnamese (Vietnam does not have an E-2 Treaty), both the Italian principal and the Vietnamese spouse would receive visas valid for 60 months.

Our recommendation: Applicants for nonimmigrant visas with dependents who have different nationalities should check the DOS’ reciprocity website to determine the length of the visas that will be issued to their dependents. It is important to know, in advance, if their dependents’ visas will be issued for a shorter validity period so that travel plans can be made.

For example, if a dependent’s visa will only be valid for 3 months, it is important to schedule additional time into international travel so that the dependent can apply for a new visa when their current one expires.

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Domestic Visa Revalidation Is Returning to the U.S.!

Before you get too excited, I want to point out two things: (1) the visa revalidation option will only apply, initially, to those seeking to renew H and L visas; and (2) the revalidation program will be launched later this year, but a definitive date has not been announced.

 

On February 9, 2023, Bloomberg Law published an article based on its interview with Julie Stufft, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, U.S. Department of State. Deputy Assistant Secretary Stufft confirmed that the Department of State would be launching the pilot domestic visa renewal program later this year, initially for foreign nationals seeking to extend their H and L visas, but could expand the program to include other visa classifications in the future.

 

This is good news of course! Immigration practitioners, U.S. employers and foreign nationals have been advocating for a domestic visa renewal process since the COVID-19 pandemic led to the shutdown of numerous U.S. embassies and consulates abroad. This in turn resulted in a significant backlog of pending visa applications, the unavailability of visa appointments, foreign national employees being stuck abroad for many months, and an interruption in work for U.S. employers.

 

However, the Department of State noted that one of the challenges in implementing the domestic visa renewal program is the difficulty in creating a new consular division in Washington, D.C.

 

Again, this is good news, but I can't help but wonder why a program that had already been in place for many years has taken so long to resurrect.  

 

Domestic visa revalidation IS NOT new—the Department of State already operated a very popular and very successful visa revalidation program through its Consular Division in Washington, D.C. until 2004. The old visa revalidation program enabled foreign nationals in the United States in E, H, L and O nonimmigrant visa status, among others, to renew their visas through the Consular Division in Washington, D.C. This visa revalidation program ended in 2004 because the Department of State was unable to meet the biometrics data collection requirements created by new national security laws enacted after the September 11, 2001 terror attacks.

 

Although it may take several more months to be implemented, the new visa renewal program will be an important and welcomed benefit for many foreign nationals, their families and U.S. employers and we are happy to see it return.

I will continue to monitor the Department of State’s visa renewal program and will provide updates as soon as information becomes available. 

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