Executive Summary: Recent reports from the U.S. Department of State (DOS) make clear that American companies need foreign talent more than ever before, and FordHarrison is here to advise on how to navigate this evolving landscape. Specifically, DOS reported that it issued more nonimmigrant visas in 2023 than in any year since 2015. The agency issued a record-breaking 365,000 nonimmigrant visas to airline and shipping crewmembers, as well as a record-breaking 590,000 nonimmigrant and immigrant visas to high-skilled workers and executives. We will continue to see improvement in pandemic-related restrictions and delays in 2024, and we can expect the movement of people and goods to increase. No surprise here, government agencies are prioritizing business. DOS is prioritizing the efficient processing of immigration benefits and obstacles for travel and immigration of talented workers and business leaders.

Expanded Visa Interview Waiver Program

Effective January 1, 2024, the State Department announced the indefinite expansion of its nonimmigrant visa interview waiver program. During the pandemic, consulates broadly waived interviews for visa renewal applications. Consular officers now have the authority and discretion to waive the in-person interview for:

• First-time H-2 visa applicants (temporary agricultural and non-agricultural workers); and
• 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; and
  • Are applying within 48 months of their most recent nonimmigrant visa’s expiration date.

We will continue to see visa renewal applications prioritized for non-tourists, i.e. students and visa workers. We are glad to see first-time H-2 visa applicants included, as H-2 visa holders provide critical support to various industries facing labor shortages: agriculture, landscaping, hospitality, and construction.

Launch of Domestic Visa Renewal Pilot Program for Some H-1B Workers

Normally, only US consular posts abroad have the authority to issue US visas to foreign nationals. However, overseas consular processing has become onerous and untenable because of lengthy visa appointment wait times resulting from pandemic-era consulate shutdowns and visa backlogs. In addition, a foreign national could be stuck overseas for an undetermined, extended period of time if the consulate places a discretionary administrative hold on the visa application.

To combat these challenges, effective January 29, 2024, DOS launched a domestic H-1B visa renewal pilot program which allows a specific subset of H-1B workers to renew H-1B visas within the US through a State Department mail-in procedure.

1. Who is Eligible? H-1B workers who were issued H-1B visas by Mission Canada or Mission India containing an issuance date falling within a specified period of time and who meet all of the other eligibility criteria below:

• Are seeking to renew an H-1B visa during the pilot phase between January 29, 2024, and April 1, 2024;
• Are renewing a prior H-1B visa issued by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023, or by Mission India with an issuance date from February 1, 2021, through September 30, 2021;
• Are not subject to a nonimmigrant visa issuance (reciprocity) fee;
• Are eligible for an in-person interview waiver;
• Have submitted ten fingerprints to DOS in connection with the prior visa application. See Question 27 here;
• Prior visa doesn’t include a “clearance received” annotation;
• Do not have a visa ineligibility that would require a waiver prior to issuance;
• Have an approved and unexpired H-1B petition, were most recently admitted to the U.S. in H-1B status, and are maintaining H-1B status in the United States;
• Period of authorized admission in H-1B status has not expired; and
• Intend to reenter the U.S. in H-1B status after a temporary period abroad.

The State Department intends to expand the availability of domestic visa renewal processing to other nonimmigrant visas categories in 2024 once it has resolved any operational issues uncovered by the pilot program. H-4 dependents of H-1B workers are not eligible for the domestic pilot at this time.

2. How many visas will be issued under the pilot program?

The State Department will issue a maximum of 20,000 H-1B visas under the pilot program. It will release 4,000 slots each week (i.e., 2,000 for qualifying Mission India visas and 2,000 for qualifying Mission Canada visas) on the following dates:

• January 29, 2024;
• February 5, 2024;
• February 12, 2024;
• February 19, 2024; and
• February 26, 2024.

3. When can applicants begin applying to renew H-1B visas under the pilot?

The State Department will accept visa renewal applications under the pilot from January 29 to April 1, 2024.

4. How do I know if I meet all of the eligibility criteria?

Interested H-1B visa renewal applicants can use the State Department’s pilot program’s prescreening tool to evaluate their eligibility to use the domestic pilot program. The State Department indicates that the screening tool may not be able to rule out all unqualified applicants, which means that some seemingly qualified applicants may have their visa renewal applications rejected after they have submitted their documents to the State Department. In that event, the foreign national can still schedule a standard visa renewal appointment at an overseas US consulate, but it will require the completion of a new DS-160 and payment of a new Machine Readable Visa (MRV) processing fee.

5. What steps should I follow to renew my H-1B visa using the domestic pilot?

1. Complete the State Department’s prescreening tool to ensure you are eligible to use the domestic pilot program at https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html.
2. If eligible, complete and electronically submit a Form DS-160, Online Nonimmigrant Visa Application, online at https://ceac.state.gov/genniv/
   • When prompted to select a location where you will be applying for this visa, select “U.S. – Domestic.”
3. Create a login or login to access the online portal for the consular post of your most recent H-1B visa issuance:
   • Mission Canada: https://ais.usvisa-info.com/en-us
   • Mission India: https://www.ustraveldocs.com/in/en/renewal-h1b-niv-in-us
   • Note: Once the weekly limits are reached for each mission the online application portal will be locked until the next date makes the next group available. The application process will close when all slots are filled, or on April 1, 2024, whichever is sooner.
4. Use the online portal to pay the required, non-refundable, non-transferrable MRV application processing fee of $205.00 by major debit or credit card.
5. Schedule an appointment on your profile by selecting 'Washington DC' as the visa adjudicating post and print the appointment letter AND/OR follow the instructions on the portal to mail your passport and other required documents to the Department of State for processing.

The average processing time for a domestic visa renewal application is expected to be six to eight weeks from the time that the passport and other required documents are received by the Department. The Department will not consider requests for expedited processing.

Preparing for H-1B Cap Season and Program Modifications

H-1B FY25 Cap season is upon us! USCIS has announced the H-1B FY25 Registration Period will run from noon Eastern on March 6, 2024, through noon Eastern on March 22, 2024. On April 1, 2024, USCIS will begin accepting online filing for H-1B cap petitions and associated Forms I-907 for petitioners whose registrations have been selected. Please contact our team if you employ any F-1 international students, or other foreign nationals who would benefit from the chance at a longer-term nonimmigrant visa.

On February 2, 2024, USCIS published a Final Rule, “Improving the H-1B Registration Selection Process and Program Integrity,” which implements some of the changes proposed in the October 2023 Notice of Proposed Rulemaking (NPRM). The February 2024 Final Rule takes effect March 4, 2024.

• Beneficiary-Centric registration process. The February 2024 Final Rule amends the H-1B regulations to make the process “beneficiary-centric.” Under the current process, the more registrations that are submitted on behalf of an individual, the higher chance that individual will be selected in a lottery. Under the new “beneficiary-centric” process, each unique individual who has a registration submitted on their behalf will be entered into the selection process once, regardless of the number of registrations submitted on their behalf. This will allow the maximum number of distinct individual registrants to be selected during the lottery the first time around. If a beneficiary is selected, each registrant that submitted a registration on that beneficiary's behalf will be notified of the beneficiary's selection and will be eligible to file a petition on that beneficiary's behalf during the applicable petition filing period.
• The February 2024 Final Rule also requires registrations to include the beneficiary’s valid passport or valid travel document. USCIS included the alternative for valid travel documents to accommodate stateless individuals, refugees, and others who are unable to obtain valid passports.
• Additionally, the February 2024 Final Rule codifies USCIS’s ability to deny or revoke an H-1B petition where there is a change in the beneficiary’s identifying information between the registration and petition, the underlying registration contained a false attestation or was otherwise invalid, or where an H-1B cap-subject petition was not based on a valid registration. The rule also codifies the agency’s authority to deny or revoke an H petition where the statements on the petition, H–1B registration, labor condition application (LCA), or temporary labor certification (TLC) were inaccurate, fraudulent, or misrepresented a material fact, including if the attestations on the H–1B registration are determined to be false.
• The February 2024 Final Rule does not finalize other provisions of the October 2023 NPRM, but USCIS states that it continues to consider suggestions made in public comments received on the other proposed changes. These other changes include revision of the definition of “specialty occupation” to require a direct relationship between the required degree field(s) and the duties of the position. If this proposal is finalized, it will impose more stringent requirements for employers to establish a relationship between the employee’s education and the duties of the position. Another proposed change that has not been finalized is expanded eligibility for cap exemption for qualifying nonprofits and governmental organizations, which would allow them to have education or research as “a fundamental activity” instead of being “primarily engaged” in education or research (nonprofits) or education or research being the “primary mission” (governmental organizations).

Ultimately, these changes are intended to make the H-1B lottery fairer and more efficient. A beneficiary-centric process will ensure each beneficiary has the same chance of being selected, regardless of the number of registrations submitted on their behalf. This is a major win for H-1B lottery beneficiaries. We welcome these changes and look forward to an H-1B cap season that hopefully results in a higher selection rate.

Significant Increase in USCIS Filing Fees and Premium Processing Timeline

On January 30, 2024, USCIS announced a new filing fee schedule, which reflects the first major filing fee increase since 2016. The increased filing fees take effect April 1, 2024.

The H-1B Cap Registration proposed fee will increase from $10 to $215 (2,050% increase). The new filing fee does not take effect until after the H-1B FY25 Registration Period; therefore, the cap registration fee for the upcoming period will continue to be $10.

The Form I-129 filing fee will increase from a uniform $460 filing fee across numerous nonimmigrant classifications to a significantly increased filing fee specific to each visa petition type.

• H-1B — $780 (70% increase)
• L-1 — $1,385 (201% increase).
• E and TN — $1,015 (121% increase)

These aggressive increases will not apply to nonprofits and small employers (having 25 or fewer full-time employees), which will benefit from lower filing fees.

In addition, USCIS is adding a new “Asylum Program Fee” to be paid by most petitioners filing Form I-129 nonimmigrant petitions and Form I-140 immigrant visa petitions, with a reduced fee for small employers and an exemption for nonprofit organizations.

Premium processing fees will also increase, effective February 26, 2024. Premium processing fees will increase as follows:

Companies will need to factor these fee increases into their 2024 budgets for sponsorship of relevant immigration benefits for employees. USCIS also proposes to extend the premium processing adjudication period from calendar days to business days.

As a reminder, premium processing does not ensure an I-129 or I-140 decision within 15 calendar days. Premium processing merely ensures a government response, and the government response may be a Request for Evidence.

Stampless Entry

Following the modern world’s paperless trajectory, U.S. Customs and Border Protection (CBP) has stopped placing ink stamps in passports to document entry into the United States as part of its larger Simplified Arrival program. Most foreign nationals must now rely solely upon their electronic I-94 to verify their authorized duration of stay. They must also use CBP travel history in conjunction with their own travel records as evidence of entries to and from the United States.

CBP has also introduced several mobile applications to attempt to streamline various documentation and admission processes. In particular, we encourage travelers to download CBP One, a mobile application that allows travelers to apply for and view their I-94s, check land border wait times, and schedule appointments at the Southwest Border land ports of entry. CBP One is also used by brokers/carriers/forwarders of inspectable goods and former Title 42 applicants. CBP encourages all travelers requiring an I-94 to use this app to apply for their I-94.

In general, we recommend that foreign nationals always check their I-94 after entry from international travel to ensure admission for the correct duration of time. Having the CBP One app at your fingertips may enable you to sooner identify errors in the electronic travel history and Form I-94 records, which can be corrected through either the local deferred inspection process or the centralized Traveler Communication Center (TCC) via the “Ask a Question” page on the CBP website.

The Bottom Line

Employers should be aware of the changes to the visa program, including increased filing and premium processing fees. We encourage those who are eligible to use domestic visa renewals to avoid lengthy overseas delays and lost production time. As the registration period for H-1B FY25 sponsorship cycle is rapidly approaching, we encourage companies to start working with counsel right away to assess the eligibility of any anticipated cases and complete the information/document intake process.