December 5, 2003 - Travel by foreign nationals who are not U.S. citizens or lawful permanent residents has become increasingly complex over the past several months due to implementation of various security measures by the U.S. State Department and processing delays at various service centers of the U.S. Citizenship and Immigration Service.

1. Individuals in the following categories have been least affected by current processing backlogs:

• Individuals holding a valid, unexpired nonimmigrant visa (e.g., H-1B, L-1, O-1, etc.);
  
• Individuals who have applied for permanent residence (i.e., filed their I-485 application for adjustment of status) and have a valid, unexpired H or L visa as well as their I-485 receipt notice;
  
• Individuals who have filed their I-485 application for adjustment of status and have a valid, unexpired advance parole document in their possession.

2. Problems may arise when an individual's nonimmigrant visa or advance parole document has expired or will expire prior to the planned travel because the time required to obtain either a new visa or a new advance parole document may have unexpectedly lengthened: ·

• Advance Parole - Applications for Advance Parole may require 3 to 5 months or more to process; the USCIS will expedite processing or issue an emergency advance parole under emergency conditions only (e.g., death in the applicant's immediate family, or business emergency involving millions of dollars in potential losses or lost revenue). The USCIS will evaluate each request for emergency advance parole and decide whether the individual circumstances merit expedited handling; since this is a purely discretionary act, there can be no guarantees regardless of the circumstances presented.
  
  
• Visa backlogs at US consulates - In July 2003 the State Department began implementing a requirement that individuals applying for new nonimmigrant visas must be personally interviewed. This immediately created backlogs for issuing nonimmigrant visas at most U.S. consulate worldwide. At present, U.S. consulates are reporting backlogs of anywhere from 3 to 8 weeks or more.

  o Note: A personal appearance waiver (PAW) may be granted by a consular officer to applicants who present no national security concern in limited situations: those who are under the age of 16, applicants who are over 60 years of age; diplomats; revalidations of the same visa classifications which are within 12 months of the visa expiration; or if determined a PAW would be in the national interest or because of unusual circumstances.
  o It may be possible to make an interview appointment in advance of arrival, which may help minimize the inconvenience created by these backlogs.
  o Most US consulates provide websites with current status and contact information for queries posted.

• Visa Revalidation - Applications for visa revalidation may take 16 weeks or more to process, and since the passport must be submitted with the application, the individual will not be able to travel until the State Department returns the passport (with the new visa). In addition, the State Department may decline to issue the visa if there are any irregularities or concerns.
  
  
• Applying at a US Consulate in Canada - U.S. consulates have discretion to issue visas to third country nationals, who, as a matter of convenience, commonly apply at consulates in Canada such as Vancouver, Calgary, or Toronto. Visa appointments may be booked online for a fee at www.nvars.com - the appointment backlog is typically 3 to 4 weeks. Issuance of visas to third country nationals at U.S. consulates is discretionary, and if an individual applies to a U.S. consulate in Canada, and the consulate declines to issue the visa, the individual may be required to travel to their home country and obtain the visa at a U.S. consulate there before re-entering the U.S.
  
  
• SPECIAL NOTE: Visa Delays Due to Technology Alert List - A recent tightening of Technology Alert List (TAL) standards has stranded visa applicants from China, Russia and several pre-dominantly Muslim countries who are perceived to pose a risk due to possible exposure to sensitive technologies/fields in the U.S. The TAL checks have taken up to a year or more in some cases.

Proper advance planning can help mitigate the inconvenience of extended delays in the processing of visa applications or applications for advance parole. There are many factors beyond those discussed above that can complicate a visa application; clients of Berry, Appleman & Leiden are advised to contact their attorney well in advance of any planned travel to discuss possible travel limitations and options for avoiding or minimizing problems.