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United States | Roundup: Immigration Policies Update in Final Weeks of 2023

Federal agencies announced several important changes to immigration programs in the last two weeks of 2023, including the details of a new domestic visa renewal program, the extension of interview waiver authorities and premium processing fee hikes. For those who missed any of the announcements, here’s a roundup of key developments:

Domestic visa renewal: The State Department will allow a limited number of H-1B holders to renew their visas in the United States under a new pilot program, the details of which were published Dec. 21, 2023. The pilot will begin Jan. 29 and will be open to 20,000 H-1B visa holders whose previous visas were approved in certain time frames by U.S. visa processing posts in Canada and India. Read BAL’s full news alert here.
Interview waiver authorities: On Dec. 21, 2023, the State Department announced that it would extend interview waiver authorities for certain nonimmigrant visa applicants. Under the updated policy, which took effect Jan. 1, consular officers will have the authority to waive interviews for (1) first-time H-2 visa applicants and (2) other nonimmigrant visa applicants who were previously issued a nonimmigrant visa in any classification (other than a B visa) and are applying within 48 months of their most recent nonimmigrant visa’s expiration date. Applicants renewing a nonimmigrant visa in the same classification within 48 months of the prior visa’s expiration date continue to be eligible for an interview waiver as well. Read BAL’s full news alert here.
Premium processing fees: U.S. Citizenship and Immigration Services will increase premium processing fees on Feb. 26. Under a regulation published Dec. 28, 2023, premium processing fees will increase by about 12% to account for inflation. Read BAL’s full news alert here.
Schedule A input: On Dec. 20, 2023, the Department of Labor asked for public input on whether to revise its list of Schedule A job classifications that do not require permanent labor certification. Read BAL’s news alert here.
F and M student nonimmigrant classifications: USCIS issued policy guidance Dec. 20, 2023, regarding the F and M student nonimmigrant classifications, including the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay and reinstatement of status for these students and their dependents in the United States. Find USCIS’ updated policy guidance here. Read BAL’s news alert here.

Additional Information: The Biden administration’s top regulatory priorities on employment-based immigration in 2024 include H-1B and H-2 modernization, fee hikes and changes to the green card process, according to the Department of Homeland Security’s regulatory agenda published in December.

State-Side H-1B Visa Renewal to Begin Jan. 29, 2024

The Department of State (“DOS”)’s pilot program for domestic H-1B visa renewals will begin on January 29, 2024, and run through April 1, 2024. As H-1B visa applicants accepted into the pilot program will no longer need to incur the time and expense of applying to renew their visas through a U.S. Consulate abroad, this is a much anticipated and welcomed advancement. This is the first time since 2004 that the DOS is revisiting stateside visa renewal, as the domestic visa renewal process was discontinued, forcing applicants to apply for visa renewals abroad.

The new pilot program is limited to individuals who have previously submitted fingerprints in connection with a prior visa application, and who are eligible for a waiver of the in-person visa interview. Applicants who want to participate in the pilot program will be subject to the eligibility requirements, timeline for implementation, and procedural requirements outlined below.

Eligibility requirements:

The applicant must be seeking to renew an H-1B visa. The DOS will not process applications for other visa classifications including H-4 visas for spouses and dependent children.
The applicant’s prior H-1B visa must have been issued either by a U.S. Consulate in Canada between January 1, 2020, and April 1, 2023, or by a U.S. Consulate in India, between February 1, 2021, and September 3, 2021.
The applicant must not be subject to a non-immigrant visa issuance fee (i.e., a reciprocity fee).
The applicant must be eligible for a waiver of the in-person interview.
The applicant must have been previously ten-fingerprinted by the DOS in connection with a prior visa application.
Any prior visa issued to the applicant must not have a “clearance received” annotation.
The applicant must not be subject to any grounds for a visa ineligibility that would require a waiver prior to visa issuance.
The applicant must have an approved and unexpired H-1B petition from U.S. Citizenship and Immigration Services (“USCIS”).
The applicant must have been recently admitted to the United States in H-1B status with an admission period that has not expired at the time of application, and be currently maintaining H-1B status in the United States; and
The applicant must intend to re-enter the United States in H-1B status after any temporary travel outside the United States.

Timeline for Implementation:

The pilot program will accept applications from January 29, 2024, through April 1, 2024, subject to the following timelines:

Approximately 2,000 slots for applicants whose H-1B visas were issued by a U.S. Consulate in Canada, and approximately 2,000 slots for those whose H-1B visas were issued by a U.S. Consulate in India, will be released on a weekly basis.
Visa slots will be released on January 29, 2024, February 5, 2024, February 12, 2024, February 19, 2024, and February 26, 2024.
Once all slots are filled in a given week, the DOS will not accept additional applications until the next release date.

Applicants who apply, but are determined to be ineligible, will have their applications returned unadjudicated, but will not be refunded the visa application fee.

Application Procedures and Processing Times:

Applicants must follow the procedures below to apply under the pilot program:

Online application required. Instructions will include directions on where to mail a passport and supporting documents.
Estimated processing times of six to eight weeks. Expedite requests will not be considered.

It is important to note that an H-1B visa issued domestically under this program does NOT provide lawful H-1B status and employment authorization in the United States or an extension of H-1B status. An H-1B visa issued under this program only serves as a “ticket” to apply for admission to the United States in H-1B status the next time the applicant travels internationally and does not govern the H-1B visa holder’s authorized period of stay and employment in the United States.

While the DOS’ pilot program is preliminary and limited in time, the program does present an encouraging step toward more efficient visa issuance and may help tackle the lengthy processing times experienced by many visa applicants at U.S. Consulates worldwide. However, the eligibility requirements for this program are very specific, limited to only H-1B visa applicants who meet a long-list of requirements.

A Holiday Gift From The State Department: Domestic Visa Revalidation Pilot Program And Visa Interview Waiver Guidance

Kris Kringle bestowed an old friend upon us for the 2023 holiday season, which, if successful, could permanently bring back stateside visa renewal.

Before biometrics were required for U.S. visas, foreign nationals (FN) legally in the U.S. on temporary (nonimmigrant) visas could renew their visa stamps through the Department of State. The process was typically efficient, resulting in a great time and expense saver for both the FN and U.S. employers. Then, biometrics became a requirement in 2002, and the State Department eliminated the program, reasoning that visa applicants’ biometrics were not available in the U.S.

History evolves, new challenges arise, and the State Department finds itself taking steps to resume this old process. The COVID-19 pandemic caused the global closure of U.S. consulates, resulting in an enormous backlog of visa processes. While the State Department has made significant progress in addressing some of these backlogs, the agency continues to struggle with lengthy wait times in many consular jurisdictions, causing considerable difficulty for individuals and businesses.

PILOT PROGRAM DETAILS
The Stateside Visa Revalidation Pilot Program was published in the Federal Register just before the Christmas holiday. However, this pilot holiday gift is limited.

Online applications will begin Jan. 29, 2024. Each week, the State Department will release approximately 2,000 application slots each for individuals whose most recent H-1B visas were issued by Mission Canada and by Mission India (approximately 4,000 combined total each week). The releases will be on Jan. 29; Feb. 5; Feb. 12; Feb. 19; and Feb. 26.

The criteria set out in the program notes:

The foreign national (FN) seeks to renew only an H-1B visa that was previously issued by Mission Canada or Mission India
20,000 renewals will be issued on a staggered schedule
To be eligible, the prior H-1B visa stamp must have been issued by Mission Canada with an issuance date from Jan. 1, 2020, through April 1, 2023, or by Mission India with an issuance date between Feb. 1, 2021, and Sept. 30, 2021
The FN is not subject to the payment of a “reciprocity fee” as part of a nonimmigrant visa issuance fee based on the country of birth
The FN is also eligible for a waiver of the in-person interview requirement based on a recent policy update
The FN submitted 10 fingerprints to the Department of State in connection with a previous visa application
An annotation of “clearance received” was not noted in prior visa stamps; this annotation will disqualify the FN for this program
No visa ineligibility that requires a waiver prior to visa issuance
Possess an approved and unexpired H-1B petition evidenced by an I-797 Notice
Most recently admitted to the United States in H-1B status
Currently maintaining H-1B status in the United States; a person on the 60-day grace period after a lay-off will not qualify
Must be in an unexpired period of authorized admission in H-1B status
Intends to reenter the United States in H-1B status after a temporary period abroad
NEW INTERVIEW WAIVER GUIDANCE
On a separate, but related, note, the State Department also published new Visa Interview Waiver guidance to replace expiring COVID-19 era policies; this guidance goes into effect on Jan. 1, 2024. This guidance applies to those individuals renewing visas abroad at a U.S. Consulate and allows Consular officers to waive interviews in certain instances.

The new interview waiver guidance will also make the following individuals eligible for interview waivers:

First time H-2 visa applicants (temporary agricultural and non-agricultural workers)
Other nonimmigrant visa applicants applying for any nonimmigrant visa classification who:
Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa
Are applying within 48 months of their most recent nonimmigrant visa’s expiration date
This new guidance is indefinite in duration, but the State Department has indicated it will review this waiver guidance annually. This authority expands access to interview waiver eligibility, while also instituting some new restrictions from the 2023 authority. All nonimmigrant categories are considered under this authority. They can be mixed and matched and still be eligible for a waiver of interview, but are no longer eligible if their only prior visa issuance was a B visa. Overall, the population of people who are eligible for the in-person interview waiver will expand.

by: Tejas Shah , M. Mercedes Badia-Tavas of Barnes & Thornburg LLP

For more news on Domestic Visa Revalidation, visit the NLR Immigration section.

U.S. Employment-Based Immigration Year in Review: Many Changes Made, Many Changes Promised

Looking back at 2023, many of the employment-based immigration changes proposed and implemented by various U.S. government agencies focused on increasing efficiency and alleviating strain on our immigration system. There was increased focus on creating consistency in adjudications of benefits, new programs aided in the reduction of processing times across all U.S. government agencies and new programs focused on attracting and retaining talent in STEM, artificial intelligence, and emerging technology fields.

Quick Hits

In 2023, we saw program-level changes to the content and format of Form ETA-9089 and Form I-9 employment verification procedure for employers. Significant changes to H-1B and F-1 programing as well as for domestic visa processing are proposed and expected in 2024.
Combined policy and processing changes that several agencies implemented confirm prioritization of STEM fields and labor market competitiveness. These changes include designation of additional STEM fields, an executive order on artificial intelligence, updated extraordinary ability and outstanding researcher guidance specific to STEM occupations, and expansion of premium processing for OPT/STEM applicants and national interest waiver filings.
USCIS significantly updated processing for certain dependents and EAD holders including a return to bundled dependent adjudication, elimination of biometrics fees, decreased automatic extensions for EAD renewals, increased validity periods, and extension of premium processing.

Program Changes to Streamline and Increase Efficiency

U.S. government agencies have prioritized the modernization of the U.S. immigration framework to enhance efficiency, user experience, and overall program effectiveness.

PERMANENT LABOR CERTIFICATION PROCESS AND NEW ETA-9089

U.S. employers rely heavily on the U.S. Department of Labor’s (DOL) permanent labor certification process to sponsor foreign workers for U.S. permanent residency. The online platform and application form transitioned significantly this year. Effective June 1, 2023, a new version of the Form ETA-9089 became effective via the Foreign Labor Application Gateway (FLAG) platform. The new Form ETA-9089 and the transition to the FLAG platform aim to streamline the permanent labor certification process and increase efficiency with the goal of improving lengthy DOL processing times.

FORM I-9 AND VIRTUAL VERIFICATION

In the United States, employers are required to verify an employee’s identity and work authorization at the time of hire and complete a Form I-9. A new version of Form I-9 became effective on August 1, 2023. At the same time, the U.S. Department of Homeland Security (DHS) introduced a new rule allowing certain qualifying employers to complete the Form I-9 process through an alternative virtual procedure. The changes to the I-9 program aim to increase employer compliance given the abundance of post-pandemic dispersed and remote workforces.

PROPOSED RULE TO MODERNIZE H-1B PROGRAM

On October 23, 2023, DHS published a notice of proposed rulemaking (NPRM) to amend various regulatory sections to update the H-1B program. The proposed changes involve setting policies for providing deference to previously approved cases without change, clarifying the requirements for meeting H-1B standards, allowing certain F-1 students to remain in the United States for a longer period of time by extending cap-gap extensions, ensuring the integrity of the H-1B lottery, and safeguarding against H-1B quota misuse through improved verification procedures. Following the close of the public comment period on December 22, 2023, DHS will likely finalize the various updates through one or more final rules. It is possible the H-1B cap provisions may be finalized in time for the fiscal year (FY) 2025 H-1B cap season.

STATESIDE VISA RENEWAL PILOT PROGRAM

The Federal Register notice from State Department was published on December 21, 2023 confirming the roll out of a stateside visa renewal pilot program. The State Department will begin with H-1B visa holders and will allow 20,000 participants to renew their visa stamps in the United States, without traveling overseas to apply at a U.S. embassy or consulate. This program will run from January 29, 2024 to April 1, 2024. A list of specific criteria is outlined in our recent article, “Stateside Visa Renewal Pilot Program Set to Begin in January 2024.”

PREMIUM PROCESSING PROGRAM

Throughout the year, we have seen substantial expansion of the premium processing program. In January 2023, premium processing became available for I-140 immigrant petition filings for multinational managers or executives and those requesting a national interest waiver. On March 6, 2023, USCIS expanded the premium processing program to include I-765 Applications for Employment Authorization filings for F-1 students requesting pre-completion Optional Practical Training (OPT), post-completion OPT, and STEM OPT extensions. On June 12, 2023, USCIS began phasing in premium processing for change of status filings for F-1, M-1, and J-1 students and their dependents. The expansion of this program demonstrates an overall USCIS commitment to reduce processing times for U.S. immigration filings.

Prioritizing STEM Fields

The U.S. government has emphasized the importance of STEM fields and maintaining U.S. global competitiveness through various initiatives and policy updates.

DESIGNATION OF NEW STEM FIELDS

On July 12, 2023, DHS added eight new fields, including Landscape Architecture, Mechatronics, Robotics, and Geospatial Intelligence, to the STEM Designated Degree Program List. F-1 students completing academic programs in the newly designated fields will be eligible to apply for an additional two years of occupational practical training (OPT) to gain practical work experience in the United States.

EXECUTIVE ORDER ON AI

President Biden signed Executive Order 14110 on October 30, 2023, focused on maintaining U.S. leadership in artificial intelligence (AI) and emerging technologies. The executive order directs the various U.S. government agencies to set policies to globally attract and retain talented individuals in these fields. It instructs the State Department and DHS to streamline visa processing for individuals coming to the United States to work or study in these areas and also encourages DHS to streamline the green card process. The executive order urges DOL to address shortages of workers in STEM fields and AI.

EVIDENTIARY GUIDANCE FOR EB-1 EXTRAORDINARY ABILITY AND OUTSTANDING PROFESSOR AND RESEARCHER IMMIGRANT PETITIONS

On September 12, 2023, USCIS updated its policy guidance on Extraordinary Ability and Outstanding Professor and Researcher classifications. The revisions include new examples of evidence, with a notable emphasis on STEM occupations, reflecting a commitment to facilitating immigration pathways for individuals with expertise in science, technology, engineering, and mathematics.

Processing Changes for Dependent Filings and EAD Applications

CONCURRENT ADJUDICATION

The settlement in Edakunni v. Mayorkas brought significant modifications to USCIS adjudication policies for H-4 and L-2 dependents and associated EADs. Effective January 25, 2023, USCIS reverted to bundled adjudication of principal and dependent applications when concurrently and properly filed with the principal H or L applicant. Reviewing these applications together, whether in regular or premium processing, speeds up the approval process for H-4, L-2, and EAD applications, making things more efficient and predictable for families. In alignment with this change, USCIS eliminated the $85 biometric services fee and attendance at a biometrics services appointment for Form I-539 applications, extending relief to various categories where the required biometrics process delayed USCIS adjudication and its final decision on the requested benefit.

AUTOMATIC EXTENSION OF EADS

On October 27, 2023, USCIS stopped automatically extending certain work permits (EADs) for 540 days and went back to the pre-COVID-19 allotment of 180 days. This affects people renewing their work permits as of October 27, 2023. However, those renewals filed prior to this date, or those that had already received a 540-day extension, will continue to be honored.

VALIDITY PERIOD FOR EADS AND ADVANCE PAROLES

On September 27, 2023, USCIS extended the validity period for initial and renewal EADs to five years for certain foreign nationals including those with pending adjustment of status applications under Immigration and Nationality Act (INA) 245. On December 8, 2023, USCIS updated the Retrogression section of its Employment-Based Adjustment of Status FAQs confirming that USCIS will also approve Advance Parole (AP) applications for a five-year period. These changes aim to reduce strain on the immigration system by reducing the frequency of renewal filings and also provide relief and consistency for those impacted by immigrant visa backlogs.

United States | Winter Travel Reminders

With the winter holidays approaching, many foreign national employees are planning to visit family abroad, vacation overseas and perhaps renew their visas while out of the country. Here are a few key reminders as we approach the holiday travel season:

Travelers should be sure to check their passports and visas. Travelers are encouraged to check how much time they must have on their passport to travel to their destination country — a minimum of six months’ validity is required for many countries, including the United States in some cases. Travelers who require a visa to reenter the U.S. should make sure their visa is valid for reentry.

Some consulates remain delayed. Some travelers may be planning to renew visas while abroad. Visa processing has improved substantially since last year, but wait times for business and tourist visas continue to be significant at some consular posts, such as Colombia, India and Mexico. Travelers should consult the appropriate embassy or consulate website for the most up-to-date information regarding appointment availability and requirements for expedited requests.

Administrative processing can delay visa issuance. BAL has seen an improvement in the number of visa applications flagged for additional administrative processing. However, some applications may still require further administrative processing, which typically delays visa applications. Travelers should note that even if a visa renewal is approved at the time of an interview, it may take a few weeks to receive the visa foil. Employers with employees who have an administrative processing case and a particularly urgent need to be in the country should contact BAL.

Travelers should consult entry restrictions for destination countries. While most countries have lifted COVID-19 entry rules, some continue to enforce vaccination and testing requirements. Employees should be aware of their destination country’s requirements and procedures and factor additional time into their travel plans if necessary.

Travelers should review State Department travel advisories. Individuals are encouraged to visit the State Department’s travel advisory website ahead of departure for detailed information about potential travel concerns at their destination.

BAL Analysis: Foreign nationals planning to travel this holiday season should be sure to check their passport and visa validity before leaving the U.S. Those planning to renew visas while abroad should anticipate possible delays; while wait times have improved, some consulates remain backlogged and administrative processing can cause additional delays. Travelers are also urged to review their destination country’s entry requirements and may wish to consult State Department travel warnings.

US Consulate in Tel Aviv Resumes Limited Operations for US Citizens and Nonimmigrant Visa Applicants

This post provides the latest update with respect to consular section operations in Israel. After closures caused by the Oct. 7, 2023, attacks on Israel and subsequent security concerns, the U.S. consular posts in Israel have resumed essential U.S. citizen services and limited nonimmigrant visa services.

The U.S. Citizen Services Unit has established daily walk-in times for U.S. citizens with immediate travel plans to obtain emergency passports. This includes emergency U.S. passport applications for first-time applicants. Furthermore, appointments can be made for all other purposes, including non-emergency travel. Appointments for renewal of lost or expired passports, Consular Reports of Birth Abroad, and notarial services are made available for the following week every Wednesday at 3 p.m. local time. Additionally, the U.S. Embassy in Jerusalem has warned that escalated levels of violence and danger in the West Bank may make it difficult for U.S. citizens to access the U.S. Embassy in Jerusalem and Consular Branch in Tel Aviv, so U.S. Services will be providing regular outreach to the West Bank for affected individuals.

Additionally, limited visa services have resumed and visa appointments can be scheduled for nonimmigrant work visas such as E-1, E-2, L-1, and H-1B; dependent visas; and student visas, such as F-1 and M-1. B visitor visa appointments and immigrant visa services continue to be unavailable. Importantly, Israeli citizens are eligible for visa-free visitor entries to the United States through the Electronic System for Travel Authorization (ESTA) for up to 90 days, subject to ESTA enrollment and approval.

DHS Publishes List of Countries Eligible for H-2A, H-2B Visa Programs

The Department of Homeland Security has published lists of countries whose nationals will be eligible for the H-2A and H-2B visa programs in the upcoming year.

‌Key Points:

The lists are mostly unchanged from last year, with one addition, Bolivia, to both lists.
All nationals who were eligible for the H-2A and H-2B visa programs last year will remain eligible this year.
Nationals of Mongolia and the Philippines will remain eligible for the H-2B visa program but not the H-2A program. Nationals of Paraguay will remain eligible for the H-2A program but not the H-2B program.
Nationals of countries that are not on the lists may be eligible for H-2A or H-2B visas on a case-by-case basis if U.S. Citizenship and Immigration Services makes a determination that issuing a visa would be in the national interest.

Additional Information: The countries whose nationals are eligible for the H-2A and H-2B visa programs are as follows.

Andorra	The Kingdom of Eswatini	Madagascar	Saint Lucia
Argentina	Fiji	Malta	San Marino
Australia	Finland	Mauritius	Serbia
Austria	France	Mexico	Singapore
Barbados	Germany	Monaco	Slovakia
Belgium	Greece	Mongolia*	Slovenia
Bolivia	Grenada	Montenegro	Solomon Islands
Bosnia and Herzegovina	Guatemala	Mozambique	South Africa
Brazil	Haiti	Nauru	South Korea
Brunei	Honduras	The Netherlands	Spain
Bulgaria	Hungary	New Zealand	St. Vincent and the Grenadines

Canada	Iceland	Nicaragua	Sweden
Chile	Ireland	North Macedonia	Switzerland
Colombia	Israel	Norway	Taiwan***
Costa Rica	Italy	Panama	Thailand
Croatia	Jamaica	Papua New Guinea	Timor-Leste
Republic of Cyprus	Japan	Paraguay**	Turkey
Czech Republic	Kiribati	Peru	Tuvalu
Denmark	Latvia	The Philippines*	Ukraine
Dominican Republic	Liechtenstein	Poland	United Kingdom
Ecuador	Lithuania	Portugal	Uruguay
El Salvador	Luxembourg	Romania	Vanuatu
Estonia

*Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

**Paraguay is eligible to participate in the H-2A program but is not eligible to participate in the H-2B program.

Additional H-2B Numbers to Be Made Available for Fiscal Year 2024

The U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) have announced that they plan to make an additional 64,716 H-2B visas available for fiscal year (FY) 2024. The announcement should bring relief to industries experiencing an unmet need for seasonal, intermittent, peak load, or one-time occurrence workers.