Stateside visa renewal pilot to begin January 29, 2024

Updated January 30, 2024

On December 20, 2023, the Department of State (“DOS”) issued a Federal Register notice announcing that the highly anticipated stateside visa renewal pilot will begin on January 29, 2024, and end on April 1, 2024. The goal of the pilot is to test the agency’s technical and operational ability to resume domestic visa renewals for certain nonimmigrant visa categories and to study the effect of this program on reducing visa wait times worldwide. The pilot will be limited to certain H-1B applicants who previously applied for visas at Mission Canada or Mission India.    

Pilot program requirements, application process, and timing details follow.

Applicant Pilot Program Requirements

To be eligible for stateside visa renewal, the applicant must:

• Seek to renew an H-1B visa during the pilot phase between January 29, 2024 and April 1, 2024 (H-4 dependents are excluded from the pilot); 

• Seek to renew a prior H-1B visa issued by Mission Canada between January 1, 2020 and April 1, 2023, or by Mission India between February 1, 2021 and September 30, 2021; 

• Not be subject to a nonimmigrant visa issuance (reciprocity) fee; 

• Be eligible for an in-person interview waiver; 

• Have submitted ten fingerprints to DOS in connection with a prior visa application; 

• Not have a “clearance received” annotation on their prior visa; 

• Not have a visa ineligibility that would require a waiver prior to issuance; 

• Have an approved and unexpired H-1B petition (Form I-797), have been admitted to the U.S. in H-1B status, and is maintaining H-1B status in the United States; 

• Have an unexpired period of authorized admission in H-1B status; and

• Intend to reenter the U.S. in H-1B status after a temporary period abroad.  

Application Process

To complete the application, applicants must complete and submit the Online Nonimmigrant Visa Application Form DS-160 using “U.S.-Domestic” as their location. They will then go to the DOS domestic renewal portal. From there applicants navigate a tool that will assist them in determining their eligibility for participation. Applicants will then be directed to the following Mission-specific links for instructions on paying the non-refundable, non-transferable Machine-Readable Visa (MRV) fee by major debit or credit card, and the address to mail their passports and the required documents for processing:

• Mission Canada domestic renewals: https://ais.usvisa-info.com/en-us

• Mission India domestic renewals: https://www.ustraveldocs.com/in/en/renewal-h1b-niv-in-us

Important note: While the navigator tool will help determine whether an applicant is qualified for the pilot, it is possible an application will be returned if it transpires that the system failed to screen out an unqualified applicant. The MRV fee will not be refunded in any case.

Under the pilot each applicant must provide the following: 

• A properly completed and filed DS-160, Online Nonimmigrant Visa Application; 

• One photograph, taken within the last six months, that meets DOS specifications;

• A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains a blank, unmarked page for placement of a visa foil;

• A valid H-1B approval notice (Form I-797 Notice of Action, original or copy); and

• Form I-94 Arrival-Departure Record (original or copy).

Evidence of U.S. residency or international travel plans are not required in the initial application filing but may be requested by DOS at a later date.

Application Time Periods and Processing Times

DOS will begin accepting online applications for this pilot starting January 29, 2024 via the online portal. Each week DOS will release approximately 2,000 application slots for those applicants whose most recent H-1B visa was issued by Mission Canada and approximately 2,000 application slots for those applicants whose most recent H-1B visa was issued by Mission India. The application process will close when all slots are filled, or on April 1, 2024, whichever comes first.

The dates of release will be as follows: 

• January 29, 2024 

• February 5, 2024 

• February 12, 2024 

• February 19, 2024 

• February 26, 2024 

Applications will be considered in the order they are received. No status on the application will be provided other than returning of the application, or issuance or refusal of the visa. Applications can check the status of their application via CEAC.

According to DOS the average processing time is expected to be 6-8 weeks from the time the passport and documents are received by DOS. DOS intends to complete processing of all applications by no later than May 1, 2024. Any incomplete applications will be refused. After May 1, 2024, no refusal will be overcome, because the pilot program will be closed.  

Issued visas, passports, and documents submitted will be returned to the applicant via USPS or a courier service.

Application Refusals and Withdrawals

If an application is accepted for adjudication but subsequently found to be ineligible, the visa application will be refused under Immigration & Nationality Act section 221(g). In these cases, applicants seeking to continue pursuit of a visa will have to start a new application at an overseas post.

No requests for expedited processing will be accepted. If an applicant applies for domestic visa renewal and requires urgent travel, they may withdraw their application and request, through the online portal, that their passport be returned to them.  

Visa Issuance is not a Status Extension 

Applicants are reminded that visa issuance is NOT a grant of nonimmigrant status and does not constitute an extension of nonimmigrant visa status or an admission to the United States. A visa only permits an applicant to seek admission at a U.S. port of entry after overseas travel.

DISCLAIMER

The information contained in this overview is intended to educate readers generally and is not intended as, nor should it be taken as, legal advice in any specific case. For specific legal advice, the reader should seek an individualized consultation with competent legal counsel of their own choosing.

© Jewell Stewart & Pratt PC 2024

H-1B "cap" reached for FY 2024

U.S. Citizenship and Immigration Services (USCIS) announced on December 13, 2023 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2024. 

The USCIS announcement states:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.

We will send non-selection notices to registrants through their online accounts over the next few days. When we finish sending these non-selection notifications, the status for properly submitted registrations that we did not select for the FY 2024 H-1B numerical allocations will show:

·         Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2024 H-1B cap. We will continue to accept and process petitions filed to:

·         Extend the amount of time a current H-1B worker may remain in the United States;

·         Change the terms of employment for current H-1B workers;

·         Allow current H-1B workers to change employers; and

·         Allow current H-1B workers to work concurrently in additional H-1B positions.

No further selections for new H-1B petition filings will take place for FY 2024, and the next registration period for FY 2025 will take place sometime in Q1 2024.

© Jewell Stewart & Pratt PC 2023

Executive Order on AI: Attracting Global Talent to the United States

In a move to strengthen the United States’ position in the global artificial intelligence (AI) landscape, on October 30, 2023, the Biden Administration issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI), which sets forth a comprehensive strategy to attract and retain top AI talent from around the world. These initiatives aim to streamline immigration pathways and ensure that the U.S. remains a hub for innovation and technological advancement.

The Executive Order recognizes the importance of attracting and retaining foreign talent in critical and emerging technologies, such as AI. To achieve this goal, the order outlines several key directives to the Department of State (DOS) and the Department of Homeland Security (DHS) related to immigration, including:

1. Streamlined Visa Processing: DOS and DHS are tasked with taking appropriate steps to streamline visa processing times for noncitizens seeking to work, study, or conduct research in AI or other critical and emerging technologies. This includes ensuring timely availability of visa appointments and facilitating continued availability for applicants with expertise in these fields.

2. J-1 Skills List Revision:  DOS is required to consider initiating rulemaking to revise the DOS’s Exchange Visitor Skills List. This would impact the two-year foreign residence requirement.

3. Stateside Visa Renewal Program:  DOS is required to consider implementing a domestic visa renewal program to enable qualified applicants, including highly skilled AI talent, to continue their work in the United States without unnecessary interruption. The program may also be expanded to include academic J-1 research scholars and F-1 students in STEM fields. (Note that a stateside renewal pilot program is already expected to launch in early 2024.)

4. Policy Changes for Extraordinary Ability Applicants and Entrepreneurs:  DHS is directed to review and initiate necessary policy changes to modernize immigration pathways for AI experts. This includes reviewing categories such as O-1A and EB-1 extraordinary ability applicants, EB-2 advanced-degree holders, and startup founders in AI and other critical technologies who may benefit from the International Entrepreneur Rule which has largely been unused.  (The modernization of the H-1B program is also mentioned. See our post on the proposed H-1B rules for more information.)

5. Revision to Schedule A List of Occupations:  The Department of Labor is instructed to publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities. The goal is to identify AI and STEM-related occupations for which there is an insufficient number of qualified U.S. workers, the designation of which which may streamline some permanent residency applications.

Note that many of these proposals would require rulemaking.  Jewell Stewart & Pratt will watch developments related to these directives closely, including the publishing of policy updates or proposed rules, and post updates here as they occur.

 © Jewell Stewart & Pratt PC 2023

USCIS proposes new H-1B definitions, H-1B Cap processes, and benefits for F-1 students

On Monday, October 23, 2023, U.S. Citizenship & Immigration Services (USCIS) published a proposed rule (Notice of Proposed Rulemaking, or NPRM) in the Federal Register that would bring significant changes to H-1B visa processes, including changes to the H-1B cap selection. The NPRM (88 FR 72870, 10/23/23) has a 60-day public comment period ending on December 22, 2023, after which a Final Rule is expected.

USCIS is prioritizing the H-1B cap selection changes to take effect in time for the FY2025 cap selection, for which registration will open in early 2024. However, in its preamble to the NPRM, USCIS acknowledges that it is also possible, if there are technology or resource issues, that the new system may be postponed. In that case, USCIS says it will publish a notice in the Federal Register at least 30 days before the initial H-1B cap registration period.

Highlights of the NPRM follow.

1.       Extended cap-gap for F-1 students

Under the NPRM, an F-1 student with OPT or STEM OPT work authorization who is the beneficiary of a change-of-status H-1B cap petition gets, upon timely filing of the petition, an automatic extension of their F-1 status and work authorization (“cap gap”) to April 1 of the fiscal year for which the H-1B is being sought. Under the current system, “cap gap” work authorization ends on September 30 of the year prior to the year for which H-1B status is sought and the individual’s F-1 status ends 60 days later. This proposal should go a long way toward minimizing F-1 work authorization gaps while awaiting H-1B status.

2.       Making H-1B cap selection lottery “beneficiary-centric”

The NPRM proposes that the registration selection process be based on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple (non-related, non-coordinating) employers may still register the same beneficiary, assuming each has a bona fide job for them; but under the NPRM, the beneficiary will only be entered once in the H-1B cap lottery. If a beneficiary is selected, and has been registered by multiple employers, each employer will receive a selection notice, and the beneficiary may then choose to pursue an H-1B with any of the employers that filed a registration on their behalf, provided there are bona fide job offers that the beneficiary intends to accept.

To enforce the limit of one H-1B cap registration per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data. Passport data will be required in all cases and, if the beneficiary is abroad, they must use the same passport in the registration that they will use to enter the U.S. (with limited exceptions).

3.       Codifying the Simeio memo for H-1B petitions

According to the USCIS Administrative Appeals Office’s decision in Matter of Simeio Solutions, LLC (2015), and the 2015 USCIS Policy Memo to implement the decision, a new or amended H-1B petition involving material changes to an H-1B beneficiary’s job must be filed with USCIS before the changes take effect. In cases where H-1B portability rules apply, the changes may take effect upon filing of the new/amended petition instead of waiting for petition approval. Any change to a beneficiary’s job that requires a new Labor Condition Application from the U.S. Department of Labor is, by definition, a material change and requires an amended H-1B petition.

The NPRM would codify the Policy Memo, giving it the force of federal regulation, and give it teeth by adding a new ground for H-1B petition revocation to the existing revocation grounds. The new ground would allow USCIS to revoke an H-1B petition if the H-1B petitioner (employer) fails to timely file an amended petition notifying USCIS of a material change. Potentially softening the effect of this is an expansion of the circumstances in which USCIS may “forgive” and accept a late-filed petition: it would not only cover filings after I-94 expiration, as it does currently, but would also cover late-filed amended petitions, i.e., where the I-94 is not expired but circumstances requiring an amended filing took effect before the amendment was filed.

 4.       Codifying policy on USCIS H-1B site visits

The NPRM codifies current USCIS policy and practice regarding employer site visits to investigate the validity of H-1B and other nonimmigrant petitions. Per the NPRM, USCIS at any time after filing of the petition, including after petition approval, may conduct unannounced site visits, hold interviews of petitioners or beneficiaries without the presence of counsel, and perform investigations to verify that the information in the petition is/was true. Failure or refusal of the petitioner to cooperate in a site visit may result in denial or revocation of the H-1B petitions of any H-1B workers at the work site in question.

5.       Revision to the regulatory definition and criteria for a “specialty occupation” including some helpful clarifications

The make-or-break issue in every H-1B petition is whether the job in question is in a “specialty occupation,” i.e., requires a bachelor’s or higher degree in a specific field. The NPRM would change the existing regulatory definition of “specialty occupation” to make it clear that any field of study stated as required for the job in the H-1B petition must be directly related to the job duties. The NPRM also would clarify that, if a range of academic fields satisfy the employer’s degree requirement, each such field must be established as directly relating to the position. The NPRM’s proposed definition of “specialty occupation” is (emphasis ours):

Specialty occupation means an occupation that requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and that requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. The required specialized studies must be directly related to the position. A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.

6.       Revision to the regulatory definition of “U.S. employer,” allowing H-1B sponsorship by an entity majority-owned by the H-1B beneficiary

In a potential boon for early-stage startups, the NPRM proposes that a “U.S. employer” for H-1B sponsorship purposes may be an entity that is majority-owned by the sponsored H-1B beneficiary as long as the majority (over 50%) of the beneficiary’s time is spent on “specialty occupation” duties. In the majority owner-beneficiary scenario, the initial H-1B petition validity would be limited to 18 months, and the first extension (including an amended petition with a request for an extension of stay) would also be limited to 18 months. Any subsequent extension may be approved for up to three years, assuming the petition satisfies all other H-1B requirements.

7.       To allow more H-1B petitions to qualify as “cap exempt,” a broadening of key definitions

H-1B petitions sponsored by certain types of organizations are exempt from the lottery for new H-1B visas each year. An H-1B beneficiary’s work for nonprofit research organizations, governmental research organizations, and nonprofit organizations affiliated with institutions of higher education is considered cap-exempt, but proving cap-exemption has been a challenge due to USCIS’ strict interpretation of the criteria, and the difficulty of proving the degree of closeness of the H-1B beneficiary’s work to the cap-exempt organization’s mission or purpose. Key liberalizing changes in the NPRM include:

• “Nonprofit research organization” – The H-1B sponsoring entity will need an IRS determination letter confirming tax-exempt status, but the IRS letter need not necessarily specify that the organization’s purpose is “research.” “Research” may be shown in other documentation.

• “Research” – Research (basic or applied) need not necessarily be the organization’s main purpose; it may be just one part of what the organization does.

• A nonprofit’s affiliation with an institution of higher education – The nonprofit’s main purpose need not necessarily be to contribute to the research or education mission of the institution; doing so may merely be a purpose, or even merely a fundamental activity, of the nonprofit.

• An H-1B petition may be cap-exempt if beneficiary’s job duties support or advance a (not necessarily the) fundamental purpose, function, mission, or objective of the cap-exempt entity.

• In an H-1B petition that is cap-exempt for a beneficiary not directly employed by the exempt entity but working “at” the exempt entity, the word “at” can mean working remotely as versus physically onsite, and work for the exempt entity may be as little as 50% of the beneficiary’s time.

The NPRM’s liberalizations in the cap-exempt area would significantly increase the number of H-1B petitions exempt from the cap, thus taking pressure off the annual demand for cap-subject H-1Bs.

Jewell Stewart & Pratt will watch developments related to the NPRM closely, including the publishing of the Final Rule, and post updates here as they occur.

© Jewell Stewart & Pratt PC 2023

Entry for 2025 Diversity Visa Lottery program opens October 4, 2023

The U.S. Department of State’s instructions for the 2025 Diversity Immigrant Visa Program (DV-2025) are now available and entries must be submitted electronically between October 4, 2023, at 12:00 noon, Eastern Daylight Time (EDT)(GMT-4) and November 7, 2023, at 12:00 Noon, Eastern Standard Time (EDT)(GMT-5). Submission of more than one entry for a person during the registration period will disqualify all entries for that person.

For DV-2025, persons who are natives of the following countries and areas are not eligible to apply:

Bangladesh, Brazil, Canada, China (including Hong Kong SAR)*, Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, Venezuela, and Vietnam.

*Natives of Macau SAR and Taiwan are eligible.

Note: United Kingdom and its dependent territories are eligible for DV-2025.

Eligibility requirements and entry instructions are on the U.S. Department of State’s website here: Diversity Visa Instructions.

The congressionally-mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2025, up to 55,000 diversity visas will be available.

© Jewell Stewart & Pratt PC 2023

Citizens of Israel eligible for Visa Waiver Program from September 19

Update: The start date for implementation has been moved up to September 19, 2023.

Original post:

As of November 30, 2023, Israel will be the 41st member of the Visa Waiver Program (VWP). Citizens of member countries of the Visa Waiver Program may enter the United States for business or tourism for up to 90 days without a visa. In return, U.S. citizens may enter member countries under the same conditions. Beginning on November 30th, Israeli citizens may apply online for authorization to travel to the U.S. through the Electronic System for Travel Authorization (ESTA). 

Citizens of countries participating in the Visa Waiver Program (VWP) may travel to the United States as visitors for business or pleasure without first obtaining a visitor’s (B-1 or B-2) visa from a U.S. Consulate. VWP admittees may enter for periods of up to 90 days, provided that they are eligible for admission under applicable law.

On September 27, the Secretary of Homeland Security announced the designation of Israel in the VWP. Eligible Israeli passport holders with ESTA clearance will be able to visit the U.S. without visas from November 30. There are now 41 VWP countries:

Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan, United Kingdom.

Like other VWP travelers, eligible Israeli passport holders must apply for advance authorization through the Electronic System for Travel Authorization (ESTA). VWP travelers are not permitted to board a carrier to travel to the U.S. by air or sea unless they have ESTA clearance.

© Jewell Stewart & Pratt PC 2023

USCIS runs second lottery on 2023 (FY 2024) H-1B registrations

On July 31, 2023, USCIS announced that it ran a second H-1B lottery on 2023 (FY 2024) registrations. The USCIS announcement states:

We now have randomly selected, from the remaining FY 2024 registrations properly submitted, a sufficient number of registrations projected as needed to reach the cap, and have notified all prospective petitioners with selected registrations from this round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2024, and only for the beneficiary named in the applicable selected registration notice.

An H-1B cap-subject petition must be filed within the period indicated on the registration selection notice; for this round of selectees, that period is August 2 to October 31, 2023.

As we noted before, in 2021 (FY 2022) a second and third selection process took place in August and November, respectively, to make unused H-1B visas available. No additional selections took place in 2022 (FY 2023). USCIS has not yet announced whether and when a third selection might take place later in 2023 (FY 2024).

© Jewell Stewart & Pratt PC 2023

Seven JSP lawyers selected for inclusion in Super Lawyers® for 2023

Jewell Stewart & Pratt (JSP) is pleased to announce that seven of its lawyers have been selected for inclusion in Northern California Super Lawyers® in 2023. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas, including immigration, who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Principal & Managing Attorney Claire Pratt has been named to the Super Lawyers list from 2019 to present, having previously received Rising Stars designation since 2015. Principal Chris Beckerson has also been named to the Super Lawyer from 2022 to present, having received “Rising Stars” designation from 2015-2019.

Founder & Of Counsel Phyllis Jewell was named a Super Lawyer at the inception of the Northern California Super Lawyers list in 2004, and has been named to the list each year from 2004 to 2013, and 2015 to present. Retired Principal Wendy Stewart has been included in the Super Lawyers list from 2021 to present. Only 5 percent of lawyers in a state are selected for inclusion in Super Lawyers. 

Of Counsel James Mayock has also been selected, having been named to the list from 2004-2013, and 2020 to present.

In addition, Associate Attorneys Zdeni Amadio and Nicole Tahtouh have been selected as Rising Stars since 2020. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for 10 years or less. No more than 2.5 percent of lawyers in a state are named to Rising Stars.

With the firm’s seven selectees, JSP represents 10% of all Super Lawyers in the immigration practice area in Northern California, further solidifying JSP’s recognition within the legal community as an outstanding firm. Congratulations to Phyllis, Wendy, Claire, Chris, James, Zdeni and Nicole, as well as the entire JSP team!

© Jewell Stewart & Pratt PC 2023

ESTA Ineligibility for Dual Nationals of and Persons Present in Cuba

On July 6, 2023, Customs & Border Protection (CBP) updated the online Electronic System for Travel Authorization (ESTA) to exclude persons who are dual nationals of a Visa Waiver Program country and of Cuba. Persons present in Cuba on or after the January 21, 2021 Department of State designation of Cuba as a State Sponsor of Terrorism are also ineligible for ESTA. Travelers who already have an approved ESTA will have it revoked. CBP noted in its update to carriers that “[i]t is stressed that travel to the United States is not barred for those travelers who are affected by the restriction and do not meet the exemption criteria. If you encounter such a traveler, direct them to apply for a nonimmigrant visa at any U.S. embassy or consulate.”

Jewell Stewart & Pratt PC welcomes the lawyers, staff, and clients of E&M Mayock!

We take great pleasure in announcing that Jim Mayock, the Managing Partner, and staff of E&M Mayock have joined Jewell Stewart & Pratt (JSP), effective July 2023.

We look forward to welcoming their clients into JSP’s practice.

JSP and E&M Mayock both have a long and distinguished history of immigration law practice based in the San Francisco Bay Area. Both firms have lawyers and staff who are highly regarded by colleagues and peers for deep expertise, quality of work product, and outstanding personalized service.

We are honored and proud to have E&M Mayock’s team and clients join JSP. We trust that you will join us in celebrating this milestone!

© Jewell Stewart & Pratt PC 2023