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An important I-9 deadline will arrive next week. The Biden administration extends Temporary Protected Status for Sudan and Ukraine. And European countries move to establish a new travel authorization system. Get the news and more on this episode of the BAL Immigration.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
You may have seen the news recently.
“U.S. Passport Holders Will Need a Visa to Travel to Europe in 2024.”
“European Union to require U.S. travelers with passports to fill out visa application.”
“Europe Will Roll Out an Entry Fee and Visa Requirement Next Year.”
These headlines are not technically correct. The European Union is not imposing a visa requirement on Americans; however, the EU is moving to launch a new electronic travel authorization program that will make business travel and tourism slightly more complicated for nationals of 60 visa-exempt countries, including the United States.
The European Travel Information and Authorization System, or ETIAS, is expected to take effect sometime in 2024 (no exact date has been provided). It will operate similarly to Electronic System for Travel Authorization (ESTA), which the United States implemented for visa-waived travelers in 2007 as part of a group of post-9/11 reforms. ETIAS is designed to work as a “digital watchdog” for Europe and will be required for 30 EU/Schengen Area countries.
The good news is the process for obtaining travel authorization will be fairly simple. Applicants will log on to the ETIAS website or app; provide personal and travel information, including passport details; and pay a €7 fee (for travelers between 18 and 70; others can apply for free). In most cases, applicants will often receive travel authorization within minutes — though it could take longer, as discussed below. Travel authorization will remain valid for three years, or until an individual’s passport expires, whichever comes first.
Assuming the system works as intended, travelers will likely only face headaches if they forget to apply for ETIAS — or wait until the last minute.
Our advice? Start planning now.
ETIAS will take effect for 60 visa-waived countries, representing 1.4 billion people on six continents, all at once. Travelers should expect delays, and even a possible system crash.
On the business front, we predict that companies’ policies will vary. Some companies may apply for ETIAS on behalf of business travelers (ETIAS does allow third-party applications with a bit of additional legwork); others may have employees apply on their own, similar to how the U.S. ESTA program is handled.
What’s important is that employers communicate with employees about the upcoming requirement, update internal resources, speak with travel desk and/or business travel vendors, and ensure their employees apply well ahead of time. While most applications will be resolved in minutes, some could take up to 14 days if flagged for additional information — or up to 30 days if flagged for an interview.
ETIAS also does not do away with other travel and immigration rules. It only permits for stays of up to 90 days in a rolling 180-day period, and allows for the same activities as visitors are used to — business activities and tourism — but not work. Individuals traveling with an ETIAS must ensure the passport details on their ETIAS match their actual passport. Discrepancies may lead to boarding refusals or complications at the border. Non-exempt nationals must still apply for a visa.
Those visiting Ireland or the United Kingdom will not apply for travel authorization through ETIAS, though the U.K. is phasing in an Electronic Travel Authorization program of its own.
New travel requirements often catch people off guard. The end of free movement between the EU and U.K. took some by surprise even after Brexit had been in the news for years. With ETIAS, neither travelers nor companies should be intimidated. When it comes to business travel, however, the sooner companies can develop plans and identify who will own the ETIAS process, the better they, and their workforce, will be prepared for the upcoming change
Beyond ruining tourists’ travel plans, U.S. passport delays are snarling companies’ ability to conduct their affairs abroad, and the disruptions to operations are impacting everyone from C-suite executives to field technicians who are required to travel.
Getting a passport or renewing one used to be a reliable, straightforward process taking about two to four weeks. COVID changed that. Even in this post-pandemic world, travelers now may face months of delays, spoiling vacation and business plans abroad, due to backlogs and understaffing at the U.S. State Department.
We sat down with BAL Senior Counsel Tiffany Derentz and Immigration Manager Paulina Morelos to learn what is causing the delays, how companies are being impacted and what they can do.
Q: Tiffany, you’re a member of BAL’s Government Strategies team and a former State Department official. What is the State Department saying about the unprecedented passport delays?
Derentz: There are a few factors impacting passport processing: First, there was a surge back in 2017, following record passport issuance in 2007, and increased demand nearly every year since then. Second, the department never fully recovered from the backlogs created between 2017 and 2019. And third, the COVID-19 pandemic significantly impacted consular services.
A record 22 million U.S. passports were issued in fiscal year 2022, and the State Department expects 2023 numbers will exceed that. With COVID restrictions finally easing, weekly passport applications were up as much as 40% above 2022 numbers in the first quarter this year, according to Secretary of State Antony Blinken in a recent press report. The State Department was receiving 500,000 applications per week through May this year, and around 400,000 per week during peak summer travel months. In a recent social media post, the department said it has authorized up to 40,000 overtime hours per month to try to keep up with demand. More Americans have U.S. passports today than at any time in our history.
Q: Can’t someone just go to a State Department Passport Agency in the nearest metro area to file a passport application directly, and wouldn’t that help to shorten processing times?
Derentz: Previously, yes, a U.S. citizen could make an appointment to visit a nearby Passport Agency and apply in person. However, demand is so high, in-person appointments are simply not available right now.
Q: Is it true other requirements have also been added to the expedited service process?
Derentz: The State Department breaks services down into four categories: (1) routine, (2) expedited, (3) urgent travel and (4) emergency. The latter three categories require that the international travel be within a certain time frame, and some applicants have been asked to provide proof of a travel itinerary. Many individuals are finding themselves in quite a stressful situation — they need their passport within a number of days but have no certainty whatsoever that they will have it back in time for their travel.
Q: Paulina, what kinds of disruptions are businesses experiencing due to their employees’ passport delays?
Morelos: Passport delays can lead do any number of disruptions to business travel, including missing important meetings. Companies can also face staffing gaps if workers’ passports expire and they are unable to travel. Sometimes it is workers’ children’s passports that cause delays. Newborns need passports, and children’s passports are good for only five years.
Second passports are often needed for frequent travelers because, when they need to apply for visas for certain places, their primary passport stays with the consulate office in the U.S. while the visa is processed. Travelers need to submit a letter from their employers justifying the business need they have for the individual to hold more than one passport.
Q: What does it take to get an emergency passport?
Morelos: To qualify for one, a person must prove a medical, family or business emergency and provide specific documents. Although it is easier to get an emergency passport at a U.S. consulate abroad, getting an appointment for one is difficult because appointments are limited.
Q: What other ramifications should people be aware of?
Morelos: Another consideration is, because the need is so great, we are seeing more scams. There are many online companies promising expedited passport services, but buyer beware! People are paying these companies high fees only to discover they are then stuck waiting the same processing time for the government to process their applications.
Q: What can companies do to help their employees and avoid the business disruptions we’ve discussed?
Morelos: Companies can inform their employees about the reality of today’s lengthy passport processing delays to help them plan accordingly. Also, BAL offers reliable expedited passport processing services. The caveat is that people must reach out to the firm before they apply for the passports themselves. Once the application process has started, we cannot assist. They would need to either wait until the passport is issued or withdraw their application.
In most cases, if corporate clients are proactive and can notify BAL of an employee’s need to travel on a specific date or within a certain time frame, the firm can obtain passports in as little as five to 10 business days after applying for them. Current wait times otherwise can stretch up to 15 weeks.
Q: How can people reach you for more information on BAL’s expedited passport processing service?
Morelos: They are welcome to contact their BAL attorney or global_initiation@bal.com.
Tiffany Derentz leads BAL’s Washington, D.C. office. Tiffany joined BAL after nearly a decade with the U.S. State Department in the Bureau of Consular Affairs and as a senior adviser to the Chief Legal Adviser for immigration affairs. Tiffany served as a consular officer at multiple posts overseas and has experience adjudicating U.S. passport applications. She has direct in-person experience working with consular sections worldwide as well as the Passport Office.
There are several types of Business Visitor classifications in the U.S. This article focuses on the B-1 visa, as well as visa waiver programs. There are also visas for entrepreneurs and investors.
The B-1 is a nonimmigrant classification for temporary business visitors to the U.S. As opposed to workers in the U.S., B-1 visitors may enter the U.S. for the purpose of engaging in business but not for the purpose of being employed. Commercial or professional activities that are not employment are permitted under B-1 visitor status.
Examples of permissible commercial or professional activities include (but are not limited to):
The range of acceptable business activities that fall under the B-1 classification is fact-specific and often depends on whether the activities constitute employment while in the U.S. Factors that influence whether activities constitute employment include whether the foreign national will be paid by a U.S. company or perform labor for hire in the U.S.
Generally, the legal requirements that must be met to obtain a B-1 visa include:
Foreign nationals outside the U.S. can obtain B-1 classification by applying for a B-1 Temporary Business Visitor visa through the U.S. Department of State (DOS) at a U.S. Consulate or Embassy. For more information regarding the consular application process, check out BAL’s explainer video, which describes the process for applying for a nonimmigrant visa at a U.S. Consulate or Embassy.
After DOS issues the B-1 visa, the foreign national may seek admission to the U.S. in B-1 status. Chinese nationals who receive a 10-year B-1 visa must enroll in the Electronic Visa Update System (EVUS).
Foreign nationals inside the U.S. can apply for B-1 status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with U.S. Citizenship and Immigration Services (USCIS).
Foreign nationals who already hold B-1 status in the U.S. can apply to extend their status by filing a Form I-539 (Application to Extend/Change Nonimmigrant Status) with USCIS.
Foreign nationals may be admitted to the U.S. in B-1 status for a period of up to six months, and they may apply to extend their B-1 status in the U.S. in periods of up to six months. Due to the temporary nature of the classification, extensions are not generally permitted beyond one year.
B-1 classification is not for employment in the U.S. This means that foreign nationals in B-1 status generally cannot receive a salary or income from a U.S.-based company while in the U.S. Foreign nationals who will be in the U.S. to engage in commercial transactions, such as meeting with buyers and accepting orders, must produce the resulting goods or services outside the U.S.
Foreign nationals in B-1 status are not permitted to enroll in a course of study in the U.S.
The Visa Waiver Program (VWP) allows citizens and nationals of countries participating in the program to travel to the U.S. for periods of up to 90 days without being required to obtain a visa. If entering the U.S. using the VWP, a foreign national will automatically be granted a stay of 90 days. In most cases, foreign nationals using the VWP are not eligible to apply for extensions of stay and must depart the U.S. within the 90-day period.
Nationals of VWP countries who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011, must obtain a B-1/B-2 visa prior to traveling to the U.S. Additionally, individuals who have traveled to Cuba on or after January 12, 2021, or are nationals of Cuba are not eligible for VWP and must obtain a B-1/B-2 visa to enter the U.S. Dual nationals of Iran, Iraq, Sudan, or Syria must also obtain a B-1/B-2 visa.
To qualify for the VWP, a foreign national must meet the following requirements:
The Electronic System for Travel Authorization (ESTA) is a web-based system that determines the eligibility of visitors to travel to the U.S. under the Visa Waiver Program (VWP), and whether such travel poses any law enforcement or security risk.
All travelers under the VWP must submit a pre-clearance application online or through the ESTA mobile app. Each approved ESTA application is generally valid for a period of two years, such that a Visa Waiver Program visitor may travel to the U.S. repeatedly within the two-year period without being required to apply for another ESTA. Individuals must obtain a new ESTA approval if they receive a new passport or if their information changes.
ESTA is not a visa but rather a requirement for entry to the U.S. under the VWP. However, like a visa, an ESTA approval is not a guarantee of admission to the U.S. An ESTA approval authorizes an individual to board a carrier for travel to the U.S. under the VWP.
Looking for expert immigration assistance for your personal or your employee’s upcoming business visits to the U.S.? Contact us now for help with the application process, including support on how to prepare an invitation letter for business purposes.
This alert has been provided by the BAL U.S. Practice Group.
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With travel disrupted for much of the past year, employees who are U.S. nationals may not have needed to renew their passports. But now that travel is beginning to pick up again, they should be aware of passport processing times and plan well in advance of travel.
Many U.S. passport services were suspended last year due to COVID-19. Passport agencies stopped taking emergency appointments or offering expedited processing, resulting in a wait of several months to obtain a passport. In 2020, 11.7 million U.S. passports were issued, a sharp decline from 20.7 million issued in 2019. Although U.S. passport services have gradually reopened for mail-in service and expedited processing is once again available via mail-in service only, no in-person appointments are available. In addition, emergency appointments are extremely limited and reserved for life-or-death situations, such as needing to travel within 72 hours for a life-saving medical treatment.
Because U.S. passports agencies and consulates overseas are coping with severe backlogs and remain understaffed, applicants should continue to plan for extended delays. As of Oct. 1, 2020, the last time the government provided the figures, 923,000 passport applications remained pending. At this time, routine processing for a passport is taking 10-12 weeks and expedited processing is taking at least 4-6 weeks.
What to expect this year? With COVID-19 lingering into 2021, U.S. passport applicants should anticipate current processing times to remain the same. That said, should we experience new surges or see new variants of COVID-19 continue to emerge, applicants should be prepared for additional actions by the Department of State, which may suspend expedited processing or result in new processing delays.
U.S. nationals should take steps now to prepare for upcoming travel, even if they are not planning to travel for several months. If their passport is set to expire this year, they should renew immediately and not wait for a return to “normal,” as the pandemic remains fluid and continues to threaten normal processing times. Travelers should also check their passport’s expiration date and make sure that it will remain valid beyond their travel. Most countries require an inbound traveler’s passport is valid for at least three months beyond the travel dates; and other countries require six months. Additionally, some airlines do not allow passengers to board if their passport does not meet the validity requirements. Travelers should confirm the individual requirements of the destination country as well as the rules of their airline regarding passport validity.
U.S. citizens residing abroad who plan to travel this year should consider their options as soon as possible. The U.S. Embassy or consulates in their country of residence may be closed or short-staffed; however, U.S. citizens may be able to book an appointment if they are in need of urgent passport support. Often this will require that the U.S. citizen personally reach out to the U.S. Embassy or consulate; requirements and appointment availability may vary by location.
Finally, as the pandemic continues to impact services in unpredictable ways, U.S. nationals and their employers should remain flexible and remember that the availability of U.S. passport services could change with little or no notice.
Jonathan Nagel is a Senior Associate in the Boston, Mass., office of Berry Appleman & Leiden LLP.
This article was originally published in the California Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.