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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.
BAL Senior Associate Cecilia Lai will speak on a panel about EB-1A/Bs, NIWs and O visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We recently sat down with Cecilia to discuss these topics.
Both EB-1A and EB-1B petitions have always faced high scrutiny and must establish that the individual is internationally recognized as extraordinary or outstanding, resulting in a subject evaluation by USCIS adjudicators.
It can be difficult to manage expectations for both the beneficiary and employers due to inconsistent adjudications or a lengthy Request for Evidence (RFE) or Notice of Intent to Deny (NOID) from USCIS. The premium processing cases have a higher likelihood of receiving NOIDS that can be difficult to overcome, especially because you are only provided 30 days to respond. We have seen more successful outcomes when USCIS provided extensions for responses to NOIDs as part of COVID-related flexibilities when individuals were able to take advantage of the additional time. However, the flexibilities recently expired and will not apply for RFEs or NOIDs issued on March 23, 2023, and later.
Employers can use O-1s as a last resort to prevent the loss of work authorization for employees such as F-1 students who had no luck with the H-1B lottery or individuals in H or L who are maxing out on their time. When employers are faced with seeing individuals need to relocate from or leave the U.S., they should consider an O-1 visa, so they don’t have to transfer the individual outside the U.S., which can be costly, or worse, completely lose the talent.
The employer needs to have an appetite for risk and patience for the hiring process. O-1s are evidence heavy and highly subjective, so that can mean delays in hiring, especially if USCIS issues a Request for Evidence. We typically walk BAL clients through the evaluation for the O-1 to manage expectations for any risks of delays or denials, especially for highly sought candidates. Also, the approval rate for O-1 visas is quite high, generally between 80% and 95%.
Outside of the traditional occupations for O-1s, such as researchers, scientists, and artists and entertainers, most people don’t think about O-1s for business or other roles. While it’s true there are three criteria to meet — temporary nature of the role, demonstrated extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture industry — there is one that is a “catchall,” and that is “any other comparable evidence that shows someone has extraordinary ability.” This is an area that you can let the creative juices flow.
I first started in entertainment law while still studying for the bar when our family friend, who manages a native Dallas rapper, introduced me to an entertainment lawyer who needed assistance. But immigration law was probably my destiny. My maternal grandparents first came to the U.S. from China. My mother met my father when he was a foreign exchange student from Hong Kong studying in the U.S. When I finished law school, my family and friends were always turning to me for immigration advice. They wanted someone they could trust even though I didn’t yet have immigration law experience. So I made the switch from entertainment law to immigration law.
What’s really rewarding about immigration versus entertainment is you see things through to a resolution. You work with individuals who have a dream and dreams for their families, and you experience the positive impacts firsthand. With entertainment law in Dallas, there is seldom a “resolution.” We set up the client’s company and contracts, and things just don’t move forward or the client moves to L.A. for more opportunities. However, I am still involved in the industry as a legal advisor to the Asian Film Festival of Dallas and served as its executive director recently.
Cecilia Lai is a Senior Associate in BAL’s Dallas office. Cecilia previously handled immigration for one of the largest tech companies in the world. Currently, Cecilia works with multiple clients in the advertising and biotech industries. She finds innovative ways to effectively manage the companies’ immigration needs for foreign national employees in the United States. Cecilia has worked with the clients’ lead stakeholders to create a competitive immigration program in multiple industries and find solutions to talent acquisition and retention that align with their business goals. She finds innovative solutions during a time of fierce competition for STEM talent and a highly fluid immigration policy environment.
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.
When President Biden took office, I assumed there would be fewer lawsuits against the government’s immigration policies and that, even as a seasoned immigration attorney with a healthy litigation practice, I would spend less time in court. I prepared to shift the bulk of my time to helping my corporate clients with more routine immigration case work.
I was wrong. While the Biden administration has reversed some Trump immigration policies and regulations, in court it continues to defend its authority to restrict certain foreign nationals from the U.S. (i.e., travel bans), it continues to defend the lengthy delays in processing times for work authorization and interviews at U.S. Consulates, and to defend its narrow interpretations of visa eligibility that impede high-skilled immigration.
In the past year, I’ve won several high-profile and important cases against the government, including successfully challenging the State Department’s visa suspension policies and overturning agency interpretation of “specialty occupation” jobs, the primary visa category for high-skilled foreign workers. By challenging the government on issues that are critical to U.S. companies and their economic competitiveness, we achieved significant progress for the U.S. immigration system and for U.S. businesses and thousands of their foreign national employees. For instance, our victory against the visa suspension policy paved the way for the State Department to announce in November that the new rules requiring foreign travelers to be vaccinated to enter the U.S. would not prevent them from applying for or obtaining a visa at a U.S. consulate. In another case, we won a decades-long argument over how the government interpreted the job role of “market research analyst” for purposes of visa eligibility. The win will hopefully broaden eligibility for many “analyst” roles, including computer analysts that most U.S. employers depend on to fill tech jobs.
The Biden administration has appealed many of these recent cases, so employers should not expect the system to become easier to navigate anytime soon. As global mobility resumes and pandemic-related pressure on the immigration system intensifies, litigation can be an important tool in an employer’s arsenal to overcome restrictive policies.
And in this extremely tight labor market with rapid wage inflation, reflecting the continuing workforce crisis and immigration bottlenecks, employers should consider every available legal strategy to challenge immigration policies that are restricting them from filling critical vacancies. Fighting for employees can also give companies a hiring and retention advantage—the Great Resignation is less likely to sweep through workforces with a strong culture of loyalty, and being willing to go to bat for your employees sends a powerful message of support to your workforce.
Understandably, many companies instinctively shy away from litigating against the government, in part because of concerns about reputational risk—after all what business wants to make headlines for suing the United States? However, there are tools to protect a company’s need for discretion while advocating for its employees. Not all cases need to make headlines. In fact, most are resolved with no public attention. And the desire to stay out of the immigration spotlight must be balanced with the need to show employees that the company is fighting for them and their colleagues. Executives want to and need to stand up for their workforce, and asking the government to treat their employees fairly is one way a company can show that they value all employees and will look out for their rights.
While I routinely rely on creative tactics to keep clients out of court—from tapping the insight of my firm’s Government Strategies team in Washington to carefully crafting National Interest Exceptions to facilitate mobility in individual cases—sometimes litigation is necessary. It may become an even more important tool in reforming a broken immigration system as we grapple with the fallout of staffing shortages, pandemic backlogs and Congressional inaction. Employers represented by experienced litigators should not hesitate to challenge unfairly restrictive policies to protect the rights of employees and the financial interests of their businesses.
Jeff Joseph is a Partner in the Denver office of BAL. With more than two decades of experience advising companies on immigration law and policy, he is a well-known immigration advocate and currently serves as Treasurer on the Executive Committee of the American Immigration Lawyers Association and is nationally ranked in Chambers and Partners. He is bilingual in English and Spanish, and has given more than 200 lectures on immigration law.
This article was originally published in the California Business Journal on Feb. 7, 2022.
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.
In this tight labor market where companies cannot afford to lose talent, delays in immigration processing are preventing U.S. businesses from retaining high-skilled workers in key job roles, such as tech, that are fueling the economic recovery.
Delays by U.S. Citizenship and Immigration Services in renewing work authorization for spouses of high skilled H-1B and L-1 workers are frustrating their ability to stay in the workplace. The delays have grown so long that it is now a common occurrence for these workers to see their employment authorization expire before their renewals are approved.
These ongoing delays are causing significant disruption for U.S. business who have been forced to take thousands of H-4 and L-2 employees off payroll and put projects on ice, while these employees wait for their employment authorization document (EAD) to be renewed. Employees whose work authorization lapses not only interrupt their careers; they may be unable to renew a driver’s license, obtain health insurance or travel. These spouses are highly educated and employed in high-skilled occupations, including in tech and other STEM fields.
H-4 spouses contribute an estimated $7.5 billion to the U.S. economy. In a lawsuit filed earlier this month, an H-4 spouse sued U.S. Citizenship and Immigration Services for causing him to lose his job as an analyst with one of the world’s leading tech companies because his work authorization expired while he waits for the government to process his renewal.
The watchdog Government Accountability Office has criticized the agency for failing to process immigration applications in a timely manner. While the number of annual petitions grew about 25% between 2015 and 2020, applications for employment authorization documents (EADs) surged by 80%, and the total number of pending cases jumped 85%, creating a growing backlog that is leaving many applicants indefinitely on hold. The GAO pointed to systemic USCIS flaws, including the lack of a sustainable workforce recruiting and retention plans, failure to request adequate resources and funding, and failure to track its caseload with a reliable case management process. “The growth in USCIS’s pending caseload and processing times impacts the individuals, families, and businesses who rely on the immigration system,” the report said.
So far, the agency has taken only incremental steps to address the backlogs and delays. The government could do much more to mitigate risks of current work authorization from expiring, such as providing automatic extensions of work authorization while renewal applications are pending and giving L-2 spouses automatic work authorization on the basis of their relationship to the L-1 visa holder, without needing to apply for an EAD. Under current policy, the earliest an applicant may file to renew their EAD is six months prior to the EAD expiration, but current processing times can take well over a year, leaving many H-1B and L-1 spouses out of work for months at a time. A class action lawsuit was filed last month seeking automatic extensions for spouses who have applied for EAD renewals.
U.S. companies have consistently advocated for H-4 spouses to be eligible for work authorization. These workers add depth of talent and skill to the U.S. economy: 90% of H-4 spouses hold a bachelor’s degree, nearly 60% have a master’s degree, and two-thirds of H-4 EAD-holders work in STEM fields. Moreover, H-4 spouses are eligible for work authorization only if they are already in line for permanent residency, so their contributions are not transitory.
While USCIS addresses its long-term workforce and funding issues in response to the GAO report, it should take immediate steps to mitigate the impact on employers and the economy when businesses lose valuable talent for no other reason than government processing delays.
Nassim Mahzoon is a Partner in the Santa Clara, Calif., office of Berry Appleman & Leiden LLP where she counsels clients on all aspects of corporate immigration and compliance, and provides holistic and strategic guidance to businesses and their employees.
This article was originally published in the California Business Journal on Nov. 3, 2021.
A multibillion-dollar shortfall at the U.S. Department of State’s Bureau of Consular Affairs is threatening to slow job growth and weaken the country’s first-line defense against national security threats.
We’re not talking construction of border “walls,” but a latent risk that could impact the readiness of the U.S. consular corps — the individuals responsible for the welfare and protection of U.S. citizens abroad, issuance of passports to U.S. citizens, and facilitation of travel to the U.S.
Primarily funded through fees generated from passport and visa applications, the bureau has lost out on nearly $4 billion in revenue since the pandemic led to the suspension of those services worldwide.
The result is predictable and unsustainable: Consular Affairs lacks money to hire and train employees. Critical anti-fraud programs are starved of people and resources. And continued budget shortfalls will prevent the government from modernizing its IT systems to enhance visa processing and protect against cybersecurity threats.
Visa and passport delays also mean fewer tourists, fewer jobs for Americans, and a slower economic recovery.
Pre-pandemic, the travel and tourism industry generated trillions of dollars for the economy and nearly 10 million American jobs. Travel industry experts estimate that the loss to the U.S. economy for 2020 alone totaled nearly half a trillion dollars.
As a former attorney in the State Department’s Visa Office, I believe the Bureau of Consular Affairs can expand capacity and restore financial stability by making common-sense changes to the way the government processes visa applications. These actions can be achieved with little to no legal or regulatory changes and, just as importantly, without cost to U.S. taxpayers.
This starts with the government maximizing use of its resources and streamlining visa processing. Under current Visa Office polices, most visa processing cannot be done remotely. COVID safety precautions also limit the number of staff that are able to be physically in the office. Opening up work streams that can be performed remotely will allow those in the office to focus on work that cannot be done outside the consular section.
Moreover, eliminating manager approval to grant exceptions to the COVID travel bans – a simple process change that could be implemented within weeks – would free up critical resources at consular posts around the world.
Moreover, the Visa Office could leverage the Secretary of State’s authority to waive in-person interviews for additional classes of low-risk applicants. The Biden administration deserves credit for using its authority to reduce the number of unnecessary interviews, but more could be done. Consider, for example, a foreign student who has been hired by a U.S. company and wants to obtain a work visa. The student has undergone extensive security vetting and has been monitored by Immigration and Customs Enforcement since their entry into the United States. Expanding consular officers’ ability to waive interviews would help reduce visa backlogs by freeing up interviews for those who really need additional in-person screening.
The government should also re-open U.S.-based visa renewals to foreign temporary workers, allowing individuals who have lawfully maintained their immigration status to obtain new visas from within the U.S. rather than forcing them to travel abroad. Moving the work to the U.S., where it was performed several decades ago, would create jobs for American workers and help U.S. businesses avoid additional costs associated with lengthy travel delays. The agency could further increase revenue by imposing a surcharge for the convenience of not having to travel overseas. Government lawyers would be more likely to sign off on the change if Congress clarified that federal judges could not second-guess visa denials.
Each of these solutions supports the bureau’s mission by allowing consular officers to devote more of their time to advancing the security and economic interests of the U.S.
Travel and tourism in the U.S. have already been devastated by the COVID-19 pandemic and the resulting budget shortfall has further jeopardized American jobs and U.S. security interests. To jumpstart its recovery, we must have a capable, well-resourced consular corps to increase U.S. passport and visa issuance capacity and energize the American economy, while continuing to protect U.S. national security interests.
Tiffany Derentz is a Senior Counsel in the Washington, D.C., office of Berry Appleman & Leiden LLP. She formerly served in the U.S. State Department’s Bureau of Consular Affairs as a senior adviser to the Chief Legal Adviser for immigration affairs, and has been at the forefront of legal issues impacting consular operations at U.S. Embassies and Consulates.
This article was originally published in the California Business Journal on Sept. 20, 2021.