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As we move into summer, many foreign national employees will be taking trips abroad for vacation, to visit family and possibly to renew their visas while outside of the country.
While we continue to experience a general increase in visa appointments, an exciting improvement after the delays and lack of availability over the last couple of years, there are still many spots where backlogs exist. The backlogs could be due to a shortage of consular staff managing the post, specific types of visas that are being prioritized or the inability of a location to support the number of visa applications they’re receiving.
One of the great services BAL provides is U.S. consular support. Via this service, we offer real time visibility into appointment calendars around the world. There are a lot of variables in how we can help our clients be successful depending on the type of visa and the current backlog in the location where they need to file.
Here are three tips to manage the variables as best as possible and ensure foreign nationals have the best chance of success for their summer travel plans.
The first tip, and the most important for me, is encouraging applicants to check:
It is difficult to catch up on an applicant’s status if they are in between time frames. Many people forget that the visa has one expiration date, but their underlying status also has an expiration date, and it’s important that both of those are valid. I’ve had many clients who planned summer travel but were only able to get a very limited amount of time because their underlying status hadn’t been extended.
To get the most out of their immigration status, foreign nationals should make sure they have the right documentation ready to extend it. Think about it not just as getting a visa, but how it extends their overall immigration status in the United States.
I always recommend applicants secure their appointment first, then get the travel plans on the calendar. It’s disappointing to an applicant when they have travel plans booked and I can’t get a date for them in that limited window of time, especially when consulates and embassies are seeing hundreds or even thousands of people every single day.
However, if we initiate the process in a timely manner, we will be able to discuss potential travel dates before they’re solidified, our team can identify where a consulate could accommodate the desired travel dates. Or if they are flexible and can move the trip a week or two, they can get an appointment with their preferred consulates due to greater availability.
It is also important to note that it may take longer in the summertime for the overall processing to happen, especially for those traveling to Europe – particularly Paris – with the Olympic and Paralympic games. Services are going to be very limited this summer in Paris, and in-person appointments might not even be available at all except for life and death emergencies. We are also finding that availability for third country national filings throughout Europe continue to be limited for foreign nationals who are not residents in that location.
Considering all the potential obstacles, I can’t emphasize it enough: let’s get the appointment on the calendar, then plan your travel.
I won’t have a lot of fans on this one, but my third tip is to not just assume that an interview waiver is going to be the faster option. The State Department highlights the interview waiver process as an advantage, and I think it is an advantage for many people, but it won’t necessarily result in a faster turnaround time for approval.
We normally see the consulate turn the visa around within five to seven business days after an interview, whereas interview waivers can take up to ten to fifteen business days. A lot of it has to do with the immediacy of an interview: the consulate has the foreign national’s passport in hand and will complete the process in the moment. On the other hand, while it’s convenient to mail in the application for the interview waiver, there’s also no telling when the consulate will actually pick it up, adjudicate it and turn it around.
It really comes down to the individual circumstances. If the foreign national plans to be in the country for multiple weeks and qualifies for an interview waiver, it’s a great option. Otherwise, I would recommend moving forward with the interview.
A question I’ve heard many times is, “what if I can’t get a visa interview?” In that case, there is the option of utilizing what’s commonly referred to as an expedite request. The way you approach these requests is completely unique to each consulate, but it generally involves the applicant asking the U.S. consulate to prioritize them over other visa applicants due to extenuating circumstances.
These extenuating circumstances – the ‘why’ behind the request – are crucial. You need to be able to explain why your case is so important that it needs to be taken care of now. When I’m able to approach the consulate with a solid answer to that question, it gives us a chance to have the request accepted.
I recommend that anyone who finds themselves in this urgent situation first review the appointment calendar and take the first available option, then submit the request. From there we can finalize the ‘why’ and work with the consulate to identify a gap in their schedule.
Happy traveling to everybody.
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.
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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.
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.
Since the Deferred Action for Childhood Arrivals (DACA) program was introduced in 2012, it’s been a rocky nine years for Dreamers who have weathered on-again, off-again threats that they could be stripped of their protection from deportation at any time. That threat is closer than ever to coming true, now that a court has struck down the program. An estimated 600,000 Dreamers are working for U.S. employers, paying billions in taxes and contributing to economic growth, further underlining the urgency for Congress to act now.
Last month, a federal court in Texas ruled that the Obama administration violated the Administrative Procedure Act when it created DACA through executive action. Though the ruling was not surprising—Judge Andrew Hanen signaled early on in the lawsuit that he was likely to overturn DACA—it now represents an existential threat to the DACA program. In vacating DACA, the court permanently blocked the government from continuing to implement it, and the Department of Homeland Security is no longer approving new DACA applications. For now, current DACA beneficiaries can continue to apply to renew their DACA and work authorization, as the government appeals the ruling.
DACA has always been an imperfect form of relief. It provides only temporary protection from deportation and the ability to obtain employment authorization for certain qualifying individuals brought to the U.S. as children. DACA offers no legal status nor a pathway toward legalization; it was always intended to be a stopgap measure until Congress passed immigration legislation. If DACA goes away altogether, the 660,000 Dreamers who are currently shielded from deportation under the program would face removal – an impractical, immoral and unnecessary scenario.
Dreamers consistently enjoy overwhelming public support, and, in a recent poll, 74% of Americans favor passing a law to give them permanent legal status. It’s not surprising that nearly 100 CEOs from the top companies in the country have unequivocally urged Congress to pass legislation that gives Dreamers a path to citizenship.
Businesses understand the direct contributions Dreamers make to their individual companies and to the U.S. economy as a whole. Upwards of 90% of Dreamers are employed. DACA recipients also outpace the general population in starting new businesses, which contributes to job creation, new spending and growth. Numerous studies not only confirm the positive impact of Dreamers on the U.S. economy, they also project significant economic losses of $460.3 billion in GDP over the next decade if DACA were abolished. Just by cutting off new DACA applicants, the U.S. is set to lose over $10 billion in federal tax revenues over the next two decades, the Cato Institute estimates. U.S. businesses would lose hundreds of thousands of workers, incurring $3.4 billion in turnover costs.
In addition to their economic contributions, more than 200,000 Dreamers have been essential workers throughout the pandemic, including about 30,000 healthcare workers on the front lines providing critical services to help stem the impact of COVID. Dreamers are an integral part of the ongoing COVID response as the Delta variant continues to prolong the pandemic and economic recovery.
“Their work and commitment to our companies, their families and communities are critical to our nation’s strength, especially since there are tens of thousands of DACA recipients working as frontline doctors and nurses and in other critical industries fighting COVID-19,” said the letter from leading American CEOs to Congress following the court ruling.
Although DHS is in the process of proposing a regulation to preserve and strengthen DACA through formal rulemaking, rather than executive action, it will take months for a final rule to take effect and the regulation is almost certain to be challenged in another round of protracted litigation. Even if it survives, the regulation will be another temporary reprieve as the DACA program teeters between the courts and an executive branch that changes every four years.
Next year, DACA will be 10 years old. After a decade of uncertainty, neither Dreamers nor the U.S. economy can afford to wait any longer. Congress, the only branch of government that can provide a permanent pathway for Dreamers, must act now to protect Dreamers and stabilize U.S. economic growth as we make our way out of the pandemic.
Maggie Murphy is a Partner in the Austin office of Berry Appleman & Leiden LLP. She currently serves as Elected Director on the Board of Governors for the American Immigration Lawyers Association. She is also a founding officer of the State Bar of Texas Immigration & Nationality Law Section, and is Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization.
This article was originally published in the California Business Journal on Aug. 20, 2021.