Tag: immigration laws

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:

  1. 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.
  2. 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.
  3. The applicant must not be subject to a non-immigrant visa issuance fee (i.e., a reciprocity fee).
  4. The applicant must be eligible for a waiver of the in-person interview.
  5. The applicant must have been previously ten-fingerprinted by the DOS in connection with a prior visa application.
  6. Any prior visa issued to the applicant must not have a “clearance received” annotation.
  7. The applicant must not be subject to any grounds for a visa ineligibility that would require a waiver prior to visa issuance.
  8. The applicant must have an approved and unexpired H-1B petition from U.S. Citizenship and Immigration Services (“USCIS”).
  9. 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
  10. 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:

  1. 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.
  2. Visa slots will be released on January 29, 2024, February 5, 2024, February 12, 2024, February 19, 2024, and February 26, 2024.
  3. 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:

  1. Online application required. Instructions will include directions on where to mail a passport and supporting documents.
  2. 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.

© 2023 Miller, Canfield, Paddock and Stone PLC
For more news on H-1B Visa Renewal, 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.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more news on US Employment-Based Immigration Laws, visit the NLR Labor & Employment section.