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A temporary policy on employment authorization extensions is set to end. Student visa issuance is on the rise. And a look at the impact of USCIS processing delays.
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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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.
U.S. Citizenship and Immigration Services completes a second H-1B registration lottery. The U.S. limits Hungarian citizens’ access to the visa waiver program. And a look at J-1 visa opportunities for STEM researchers and specialists — and how they could help keep the U.S. competitive in the global economy.
The Department of Homeland Security publishes a much-anticipated Form I-9 rule. USCIS announces it will conduct a second H-1B registration lottery. And a closer look at two recent Supreme Court cases and their impact on DACA litigation.
This alert has been provided by the BAL U.S. Practice Group.
Tiffany Derentz is a senior counsel at BAL’s Washington, D.C., office, and member of the firm’s Government Strategies team. She serves on the board of the Immigration Law Section of the Federal Bar Association and is a member of the American Immigration Lawyers Association.
Prior to joining BAL, Tiffany served as Deputy Chief of the Legal Advisory Opinions Division within the Visa Office, placing her at the forefront of legal issues impacting all facets of consular operations at U.S. embassies and consulates. She also served as a senior adviser to the Department of State’s Chief Legal Adviser for immigration affairs. In addition to her experience in D.C., Tiffany served as a consular officer at multiple posts overseas, including in the Middle East and Russia. She has direct in-person experience working with consular sections worldwide, the National Visa Center and the Kentucky Consular Center. We recently spoke with her about her work and her take on visa processing and other State Department hot topics.
Consular processing has significantly improved, although if you look at wait times for tourists and business visitors, they are still very long. Take, for example, India: We’ve seen B wait times improve by about 300 days, but they are still around 350 days or more.
Progress has been made in other ways: The State Department expects to fully staff embassies and consulates this year, and they actually processed more visas last year than they had in any year since 2019. The government recently improved administrative processing and gained some other efficiencies. For example, it used to be if you had a case in New Delhi, it would be adjudicated by an officer in New Delhi. Now you can apply in New Delhi and have a consular officer in Frankfurt or the United States adjudicate the application. This flexibility allows the State Department to process more cases for Indian nationals, which is a huge help in reducing backlogs.
Administrative processing is a term the government uses to mean some other action needs to be taken on a case — either the applicant needs to provide something, the consular officer needs to do something, such as get a legal opinion, or additional security vetting needs to be done. For cases that take longer, what you see as a “problem” or delay typically is security vetting. However, now there’s a National Vetting Center these cases are routed through that is supposed to decrease the number of people being flagged for administrative processing, and the vetting itself is taking much less time. Some cases will continue to take longer, but for those who appear for their interview or whose paperwork was submitted through interview waiver from November forward, most of those cases should take about two weeks compared to several months — and, in some cases, over a year — that we saw during COVID.
Prior to COVID, applicants were encouraged to apply for a visa in their home country or country of residence. This helped to reduce “forum shopping,” i.e., applicants trying to find a favorable post. There are also benefits to applying in the home country or country of residence. Consular officers learn the applicant pool and other local customs or conditions, such as what a normal salary is in the local currency and area as well as other factors that can impact visa adjudications.
Then COVID hit, and the government shut down for a few months. When offices reopened, they had a backlog and limited number of officers in key places to adjudicate cases. As visas cannot be adjudicated remotely by officers, COVID limited the number of people who could be in embassies and consulates, as well as in offices in U.S. government agencies that may have a role in the visa process. People had to apply where they were a national or resident because consulates didn’t have the bandwidth to take on extra cases.
More recently, the Visa Office advised consular officers to accept third-country nationals and, in some cases, have opened up appointment availability for certain applicants. For example, Indian nationals can apply in Frankfurt and Bangkok, where appointments have been set aside for them. Not all posts are able to accept third-country nationals though, so it is important to check the embassy’s or consulate’s website.
Yes! Athletes and entertainers are being delayed. For example, there was a big track and field event last summer in Oregon, the World Athletics Championships, which garnered media attention about athletes getting visas just hours before their races and flying to the United States. We’ve seen delays with both large and small sporting events. Over the next decade, that is going to be a particularly challenging issue because there are several major sporting events in the United States, including the Summer Olympics and Paralympics in 2028 and the World Cup in 2026, that will require a very clear and efficient visa process for athletes, coaches and support staff, as well as the fans. You can’t have sporting events without fans. Some of these people will be coming from countries that don’t have visa waiver as an option. In the past, that might have required additional screening, and the government will need to be able to process those in a timely manner to ensure the success of these events.
On the entertainment front, a number of bands have had to cancel concerts due to visa issues.
We don’t know much right now, as the State Department is still trying to decide who is eligible and work through how the pilot will run overall. The pilot is likely to include a small population of Hs or Ls, as they need to be able to test adjudication domestically before they launch a renewal program. They are going to have to collect fees and passports, and have staff to process these cases.
Domestic visa renewal has not been used, except in very limited circumstances for diplomatic and official visas, since 2004 because immigration laws were changed after 9/11. However, a State Department regulation has stayed in place that allows for domestic visa renewal for certain work visa categories — Es, Hs, Is, Ls, Os and Ps. It hasn’t been used in almost 20 years though, so the State Department has to set up an entire office and a new process in order to renew visas domestically. Once a domestic renewal program is launched, it will allow individuals in the United States to reapply for a visa domestically instead of being forced to go abroad. This will also open up more capacity at U.S. embassies and consulates, keeping appointments open to those who need it.
Before I graduated from law school, I was accepted to a fellowship program with the government called the Presidential Management Fellows (PMF) Program. As a PMF, certain government jobs are open to you. I was able to secure a position in the Visa Office. To be honest, I wasn’t looking to get into immigration, but I needed a job before I graduated and the job market was pretty tough. At the time, I didn’t really know what I was getting myself into or what government work was like. My first year in the program, I spent five months at the embassy in Moscow and was involved in planning the 2014 Sochi Winter Olympics. My experience in Moscow was a very big, pivotal time for me, both personally and professionally. It was the first of many incredibly unique experiences that only the U.S. government can offer. I’ve been in immigration ever since.
I appreciate being a member of the Government Strategies team because I get to work with incredible people and I can utilize my State Department background in a way that I feel is meaningful. Our Government Strategies team is truly unique. Combined, we have decades of experience in the U.S. government, and more specifically, in the agencies that handle immigration. We’ve been on the inside, so we know how the government works, who the key players are, and have extensive knowledge in immigration. We help our clients navigate complex legal issues and processes, and ensure they understand how changes may impact their immigration programs. Being able to share my experience at the State Department with others in a way that helps our firm and our clients is fulfilling in so many ways.