A recent update and clarification from the Department of State (DOS) on waiver eligibility expands opportunities for visa applicants facing difficulties in obtaining visa stamps for entry to the U.S. This clarification, specifically on the “significant public interest” category in the Foreign Affairs Manual (FAM), provides valuable guidance for individuals who are ineligible for admission to the U.S. but are seeking visas in categories such as H-1B, F-1, and B-1/B-2.
For background, the Immigration and Nationality Act (INA) identifies grounds of inadmissibility for those seeking to enter the U.S. temporarily for work or short visits. The INA also provides a mechanism to seek waivers if a ground of inadmissibility applies. The grounds for inadmissibility are broad and include health or criminal-related grounds, accrual of unlawful presence in the U.S. as well as fraud. When a visa applicant submits a waiver request to the U.S. Consulate, consular officers weigh a number of factors when assessing the request, including the recency and seriousness of the activity causing ineligibility, purpose of travel to the U.S., the positive or negative effects of the travel on U.S. public interests, whether the incident was isolated and singular or a pattern, and evidence of reformation or rehabilitation.
DOS’ latest update to the FAM provides additional context for Consular officers in their assessment of the public interest factor. Consular officers are instructed to consider an applicant’s educational background and skills as a benefit to the public interest, especially if the applicant has a U.S. degree or is qualified for skilled labor and seeks to work in the U.S. in a field related to their credentials. The guidelines do not clarify whether “credentials to engage in skilled labor” must be U.S. based or can include qualifications gained outside the U.S. However, it is reasonable to assume that both types of credentials should qualify, given the priority placed on addressing U.S. labor needs in key industries. This update is a positive development for companies looking to hire skilled workers who will contribute to the U.S. economy.
For waiver expedite requests, the FAM 305.4-3(F) now articulates that “there is a clear and significant U.S. public interest” if the applicant possesses the U.S. degree or credentials as detailed above. This paves the way for those urgently needing to travel for business or relocate to the U.S. temporarily for work, even if they have been ineligible for a visa in the past due to overstaying or other long-past infractions.
Although U.S. Citizenship and Immigration Services and Customs and Border Protection have not yet formally adopted the DOS’s new guidelines, these changes signal the U.S. government’s recognition of the valuable contributions made by individuals with in-demand skills and those who have completed undergraduate or graduate studies in the U.S. For businesses facing challenges in finding key talent domestically and who rely on a global search, this is a welcome development.
