On January 19, 2012, President Obama by Executive Order outlined several initiatives to improve visa and foreign visitor processing and promote travel as a way to create jobs and spur economic growth in the United States. The travel and tourism industry, he stated, is the country’s leading service sectors and sources of exports, yet its market share of spending by international travelers has dramatically fallen over the last 10 years. The President ordered all appropriate agencies to develop, within 60 days, an implementation plan to achieve a number of specific goals: (1) increase the nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year; (2) ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of their application; (3) increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants; and (4) expand reciprocal recognition programs for expedited travel, such as the Global Entry program. The President also established a Task Force on Travel and Competitiveness to develop the “National Travel and Tourism Strategy.”
Dovetailing with this Executive Order, the White House and the Departments of Homeland Security (DHS) and State (DOS) announced on January 31 steps they will take to attract and retain foreign-born entrepreneurs and highly skilled immigrants and stimulate economic growth. These include regulatory changes that would:
- positively affect F-1 foreign students and their spouses;
- permit spouses of certain H-1Bs to obtain work authorization;
- broaden the scope of allowable evidence for EB-2 outstanding professors and researcher; and
- make it easier for professional nonimmigrant workers from Australia, Chile, and Singapore to continue working while their extension of status requests are pending.
DHS also announced a new Entrepreneur in Residence Summit to seek information and ideas from the entrepreneurial community and academics on how to maximize current law to attract foreign entrepreneurial talent.
Waiver of Visa Interview
Several government initiatives aimed at reducing nonimmigrant visa wait times are now in play. Most significantly, DOS announced a new pilot program to waive the nonimmigrant visa interview requirement for certain visa renewals. Under the program, slated to run for two years, certain visa renewals that are more than 12 months but less than 48 months post-expiration will be eligible for renewal without a consular interview for the same visa category. The visa interview waiver will be available to foreign nationals who have previously had their 10-print fingerprint scan collected; it will not be available to applicants who were previously denied a visa or who are listed in the Consular Lookout and Support System (CLASS) or require a Security Advisory Opinion. Nor will the interview waiver be available to applicants who may have failed to comply with U.S. immigration laws or who are applying in a “high-threat” or “high-fraud” location. Only certain types of visas will be eligible for this benefit, and although DOS has not yet released a comprehensive list, it is projected that F, J and M visas will be included. On February 13, the U.S. Embassy, Beijing launched its visa interview pilot program for certain B, C, D F, J, M, and O visa holders consistent with the procedures outlined above by DOS. More details are likely to emerge over the next few weeks.
Additionally, Brazilian citizens younger than 16 or older than 66 who are applying for an initial visa or renewal visa (regardless of classification) and are citizens or residents of the country in which they are applying can forgo the consular interview and fingerprint requirement.
Expanded Service in Brazil and China
Besides the changes to the interview requirements in China and Brazil noted above, DOS has expanded its visa processing capacity in those countries by deploying additional personnel, expanding visa sections, and using new systems to facilitate travel from these countries. In late 2011, DOS had reported a record demand for visas for nationals from Brazil and China, a 50 percent increase in one quarter. For Brazil, the increase in demand reflected a 200 percent increase in five years; for China, a more than 30 percent increase from last year. Noting that every additional 65 international visitors to the U.S. translates into one additional travel and tourism-related job, Brazil and China are now considered key growth markets for the United States.
Visa Waiver and Global Entry Programs
The expansion of the Visa Waiver program to additional countries will mean that fewer international business and tourism visitors will need to apply for a visa. Citizens from 36 countries currently can participate; last month, Taiwan was nominated for inclusion. Pressure is now on DHS and DOS to increase the number of countries whose eligible citizens can travel without making a formal application.
In another move to ease the international-arrival process, DHS Secretary Napolitano announced a final rule, effective March 7, 2012, making the Global Entry program a permanent one and providing CBP with the ability to expand the program to additional U.S. international airports. Global Entry allows certain pre-approved, low-risk travelers to streamline the international arrivals and admission process at airports. Currently, the program is available to U.S. citizens, permanent residents, and certain other nationals. In addition, the rule changes the age eligibility criteria to allow more families to participate in the program: persons under age 18 who meet the general eligibility criteria and have the consent of a parent or legal guardian will now be eligible to participate in Global Entry. DHS advises that those individual currently enrolled will not experience a break in membership or need to re-apply when the program becomes permanent. Members currently participating in the pilot will have their time credited to the five year membership. According to DHS, the majority of travelers using Global Entry are processed in under five minutes.
Upcoming Regulatory Proposals
As mentioned above, DHS also announced a number of regulatory changes that would:
- expand the eligibility requirements so that more F-1 students would be eligible for 17-month optional practical training (OPT) rather than 12-month OPT now available to them;
- permit spouses of F-1s to enroll in part-time academic classes, rather than only vocational or recreational classes;
- provide work authorization for H-4 spouses while their H-1B spouse waits for his or her adjustment of status application to be decided;
- expand the scope of evidence of academic achievement to prove that a professor or researchers is outstanding; and
- permit E-3 Australians and H-1B1 Chilean and Singaporean nationals to continue to work for 240 days with their same employer while their extension of status requests are pending, provisions that are available to other nonimmigrant workers.
All of these initiatives come as welcome news, from the more modest to bold. The regulatory changes and visa interview waiver could positively impact American business and facilitate the entry and employment of needed talent at a time when the U.S. continues to struggle to recover economically and remain competitive. But, as highlighted below, real change must happen – and happen fast – at the adjudicatory level, where immigration and consular officers wield tremendous power and ability to keep out skilled foreign nationals. Rigid, restrictive interpretations of regulatory eligibility requirements by front-line decision makers will trump more generous policies time and time again.
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