What’s Happening
The Department of State (DOS) issued an updated policy via its website on Saturday, September 6th stating that, effective immediately, they are updating their policy on Third Country National (TCN) nonimmigrant visa processing. Until now, all consular posts were able to accept TCN nonimmigrant visa applications, with specific policies varying across posts regarding wait times, adjudication procedures, and eligibility criteria for TCN processing. While DOS has always preferred applicants to apply in their home country where possible, this new policy marks a significant departure from that long-standing practice of allowing applicants to apply wherever they are able to get an appointment if there is not good availability in their country of nationality or residence.
At this time, it appears that the guidance was issued without advance warning to individual consular posts and, as of Monday morning, the immigration bar is seeing a large amount of inconsistency across posts with respect to TCN visa adjudications, with some posts continuing to process already-scheduled TCN appointments and others (most notably the U.S. Embassy in London) completing interviews but declining to take passports for visa stamping and placing applications in administrative processing until they receive further implementation guidance from DOS leadership.
We have summarized below the main points covered in the updated guidance along with some commentary on what we do and do not know at this time based on the unclear wording of the new guidance, which leaves open questions as to whether TCN processing is now completely prohibited unless an individual can establish residency in the consular jurisdiction, or whether it is being discouraged but still ultimately a practice that will be allowed to continue with increased restrictions.
What We Do and Don’t Know at This Time:
Applicants are expected to schedule interviews in their country of nationality or legal residence. The State Department now instructs that nonimmigrant visa (NIV) applicants should (not must) book their interview appointments at a U.S. embassy or consulate in their country of citizenship or where they legally reside. The plain reading of the State Department Guidance does not appear to strictly prohibit applying in a third country, but doing so appears to be increasingly discouraged and may result in longer wait times, additional operational and logistical disadvantages, increased risk of administrative processing delays, and even visa refusal. Machine Readable Visa Application Fees (MRV Fees) are non-refundable and cannot be transferred in the event an individual is deemed not eligible to apply at a particular post as a TCN or their visa application is refused.
Previously booked third-country appointments will generally be honored. The State Department has confirmed that existing NIV appointments will generally not be canceled. However, we are seeing various posts complete interviews but advise clients they are not able to issue visa stamps until they receive more guidance from headquarters.
Applicants from countries without routine NIV operations must use designated alternative posts. Affected nationals—e.g., Afghanistan (Islamabad), Russia (Astana or Warsaw), Venezuela (Bogota), Yemen (Riyadh), etc.—should apply at the specified embassy unless they reside elsewhere. A full list of alternative posts can be found here. It’s unclear whether impacted foreign nationals will receive similar processing times to nationals/residents of the designated alternative posts or whether wait times for visas will be more limited.
Applicants applying based on residence in a third country must demonstrate legal residency. The new guidance does not specify what level of residency (e.g., student v. permanent resident) is required or what types of documentation should be presented to establish residency but such documents are likely to include work or student visas, residency permits, leases, or other proof of legal residence in the country.
Standard exceptions remain in place. This guidance does not apply to A, G, C-2, C-3, NATO, diplomatic/official-type, or UN-HQ visas. Rare exceptions may be made for humanitarian, medical, or compelling foreign policy reasons.
As noted above, the guidance appears to have been issued with little to no notice or implementation guidance to consular staff. Individuals who have questions about their specific appointment should attempt to contact the consular post via a designated email address or the post’s Visa Navigator page, if available.
Until further guidance and clarification on the scope of the new policy is provided, and unless there is a compelling reason for an exception, NIV applicants should plan to schedule their interviews in their country of citizenship or residence. This may require more advanced planning and greater flexibility compared to previous years.
This updated policy guidance along with prior changes to consular practices and policies, including a reduction in visa interview waiver eligibility and additional social media vetting for certain types of nonimmigrant visa applications, could further constrain consular resources and it is possible that wait time for nonimmigrant visa interviews may significantly increase at some posts.
D&S is actively monitoring this and will provide updates as more information becomes available.