As part of the U.S. government’s response to the pandemic, entry to the U.S. has been restricted for certain foreign nationals who have been physically present during any part of the 14 days prior to entry in Brazil, the United Kingdom, the Republic of Ireland, the Schengen Area, South Africa, Iran and China due to President Proclamation 10143 (PP 10143). Foreign nationals with valid visas or authorization via the Visa Waiver Program (VWP) can quarantine outside those areas for 14 days and then travel into the United States. PP 10143 contains an exception for those foreign nationals whose travel is in the national interest, known as a national interest exception (NIE). You can read more on the qualifications for an NIE here.

What PP 10143 does not do is restrict the State Department from granting visas to applicants who physically reside in the countries listed above. However, various embassies from these affected countries have implemented rules that automatically deny the issuance of a visa to a foreign national who does not qualify for an NIE. This is happening, despite no official pronouncement from the U.S. government or a presidential proclamation restricting visa issuances in countries affected by PP 10143.

For instance, the U.S. Embassy in Krakow’s auto-reply email includes this note: “Please also note that we can only issue visas to applicants who are currently able to travel to the United States (i.e. exempt from Presidential Proclamations 10052 and 10143 or able to obtain a National Interest Exception.) Applicants may not apply for visas in Krakow and then “quarantine” outside of the Schengen Area to avoid the PP 10143 restrictions [emphasis added].” The U.S. Embassy in Amsterdam has the following message on its website: “The U.S. Consulate in Amsterdam is providing limited immigrant visa services (IR-1, IR-2, CR1, CR-2, F2A) and very limited non-immigrant visa services for students and certain petition-based workers that qualify for an exception to current travel restrictions [emphasis added].” On top of these explicit statements, most embassies within the PP 10143-affected countries are simply restricting the processing of visa applicants who do not qualify for an NIE under pandemic capacity limits.

The effect of these policies is to place a shadow ban on visa issuances for foreign nationals that do not qualify for an NIE, particularly for individuals who would otherwise qualify for a nonimmigrant visa, especially in petition-based categories. This becomes particularly frustrating because recent evidence suggests embassies have open appointment slots that could be taken by visa applicants who do not qualify for an NIE. Visa applicants who do not qualify for an NIE are prevented from scheduling during these open appointment slots for fear of a visa denial.

These issues reveal a mismatch between even pandemic limited capacity and current embassy operations. The failure to maximize even pandemic limited capacity may exacerbate the lasting impacts of the pandemic on embassy operations, as there is likely a historic amount of pent-up demand for visa processing due to the pandemic. There is no good reason to restrict visa issuances from qualified applicants merely because they must quarantine outside a PP 10143 affected country, particularly when embassies have the capacity to process these visas. Finally, it is ultimately U.S. companies and U.S. family members who will bear the negative effects of these policies.