Harris Beach PLLC understands the U.S. Department of State (DOS) will soon revive a long-dormant program that allows a limited number of nonimmigrant visa holders to renew their visas from within the United States, a process historically referred to as “domestic revalidation.”
Has there been an official announcement about restarting domestic visa revalidation?
No, the State Department has yet to make a public announcement about restarting domestic visa revalidation. Rather, the only official information currently available is a notice on the website of the Office of Information and Regulatory Affairs (OIRA) indicating that on October 17, 2023, the State Department submitted for OIRA review a proposed rule entitled “Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens.”
To be clear, this notice only includes the title of the proposed rule. The actual text of the rule has not yet been released.
Who will qualify for domestic visa revalidation under the pilot program?
It is impossible to know who will qualify for sure until the proposed rule has been officially published in the Federal Register. However, according to the American Immigration Lawyers Association (AILA), the State Department has suggested the pilot program will be limited to applicants who meet each of the following criteria:
- Are a principal H-1B visa holder (meaning that H-4 dependent family members will not qualify);
- Are a national of a country not subject to reciprocity fees, referring to the additional visa costs imposed on nationals of certain countries to ensure “reciprocity” with the fees charged by their home governments for similar visas;[1] and
- Meet the requirements for a visa interview waiver. According to DOS’s website, this would include:
- Applicants who are renewing a visa within 48 months of the prior visa’s expiration; or
- Applicants who have never been refused a visa, unless such a refusal was overcome or waived, and have no apparent ineligibility or potential ineligibility.
When will the pilot program go into effect?
Early 2024, according to AILA.
How many applications will be processed under the pilot program?
DOS is expected to limit the pilot program to only 20,000 applications. By way of comparison, in Fiscal Year 2022, the State Department issued approximately 206,000 H-1B visas worldwide. While we don’t know how many of those would have qualified for the pilot program, we can infer that the 20,000 applications to be processed represent only a small fraction of the total number of visa applications adjudicated annually. We therefore anticipate that availability will be extremely limited and recommend that anyone intending on participating in the program make alternative plans in case they are ineligible, or their participation is refused.
When will the proposed rule be published?
We do not presently know when the proposed rule will be published, but, unless an extension is requested, OIRA has only 90 days to complete its review.[2] As such, we expect the proposed rule to be announced by or before mid-January 2024.
Does the State Department plan on expanding domestic visa revalidation?
Based on our understanding of DOS’s intentions, the pilot program’s purpose is to lay the groundwork for a more expansive policy. However, the details of that expanded policy – such as who would qualify and when it would be implemented -- remain open questions.
What are the advantages of domestic visa revalidation?
To fully grasp the advantages of domestic visa revalidation, one has to consider the headaches caused by having to periodically consular process a nonimmigrant visa abroad. Under current DOS policy, all non-diplomatic visa holders must apply for new visa stamps before a U.S. consulate or embassy while physically outside the United States. Accordingly, any visa holder wishing to possess a valid visa stamp, and thus preserve their ability to travel internationally, must renew their visa by departing the United States, scheduling and attending an interview before a consular officer (typically conducted in-person), and waiting anywhere from one to three weeks for the visa to be issued.
Having to periodically repeat this process represents a tremendous inconvenience and expense to these visa holders, many of whom have lived in the United States for more than a decade. Every few years, though, they must take several weeks off work or school, travel long distances to attend the appointment, and pay thousands of dollars for flight costs and often lodging for up to four weeks while the application is adjudicated. Simply put, it is time-consuming, expensive and incredibly stressful.
Making the process even more stressful is the possibility of being placed into so-called “administrative processing,” a security background check that can take several weeks, or potentially months, to clear. This problem is particularly acute for visa holders of certain nationalities and educational backgrounds, and for those being selected for administrative processing during nearly every visa application process. For all visa applicants, however, administrative processing serves as the proverbial Sword of Damocles that hangs over each visa renewal.
From this backdrop, allowing for domestic visa renewals may eliminate many of these problems. It will obviate the visa holder’s need to take time off work or school to travel abroad, as well as cut down on travel and lodging expenses incurred to attend the appointment and wait for the visa’s issuance.
For those applicants who are placed into administrative processing, it remains to be seen whether DOS will continue to process their visas domestically, or if they will be forced to depart the United States and resubmit their applications abroad. Assuming they are allowed to continue the process domestically, it would significantly cut down the uncertainty and emotional toll that comes with having to wait for administrative processing to clear from outside the country.
Does Department of State currently allow domestic visa revalidation for any visa categories?
Yes, but only for holders of certain diplomatic visas, such as ambassadors and consular officers of those countries.[3]
Has DOS previously allowed for domestic visa revalidation for non-diplomatic visas?
Yes, domestic visa revalidation has a long and controversial history within the U.S. immigration system. We briefly review that history here.
The concept of domestic visa issuance has been a part of U.S. immigration policy since at least 1925, when President Calvin Coolidge issued Executive Order No. 4210 pertaining to the issuance of diplomatic visas.[4] This order announced that foreign diplomats could apply for diplomatic visas from within the United States and were no longer required to have their passports “visaed” abroad,[5] a policy that would later be codified into DOS regulations.[6]
In 1961, DOS would amend those regulations by opening domestic revalidation to holders of I visas (journalists) and E visas (treaty traders and investors).[7] DOS next added F (students) and J (exchange visitors) visa holders to list of eligible categories in 1963,[8] and then H visas (distinguished merit and ability workers, the precursor category to the current H-1B and O-1 classifications) in 1964[9] and L visas (international transferees) in 1970.[10]
The list of eligible categories would eventually become too long, however, and DOS took steps to contract it. This first occurred in 1973, when DOS eliminated students and exchange visitors from the domestic revalidation program.[11] In announcing this change, DOS noted that “the original purpose” of the revalidation process was to provide services to “foreign government officials and to international organization aliens,” and that the “volume of applications has increased to the point that it interferes with orderly and expeditious processing of requests.”[12] Despite receiving overwhelming opposition to the proposed changes, the rules took effect the following year.[13]
In 1983, DOS attempted to contract the list even further when it proposed limiting the domestic revalidation process to only those E, I, H, and L visa holders who are employed with state-owned companies from their country of origin.[14] Again noting the original purpose of domestic revalidation was to assist diplomatic officials, DOS cited procedural challenges caused by the ever-expanding class of visa categories that qualified.[15] According to DOS, the high volume in cases had resulted in a “large back-log” of applications, and that many applicants “are seriously inconvenienced and must delay departure from the United States because their passports are either in transit or awaiting their turn to be processed.”[16] Although this proposed change never went into effect, the processing delays that led to the proposal serve as a worrying reminder of the potential problems that could arise if the demand exceeds DOS processing capability.
From 1983 until 2003, the domestic revalidation process remained relatively unchanged, except by adding O (extraordinary ability workers) and P (athletes, entertainment groups and cultural exchange participants) visas to the list of available classifications.[17] Notably, in announcing these additions in 2001, DOS stated a different intended purpose of the domestic revalidation authority than in previous communications. Specifically, the announcement mentioned that domestic revalidation was intended as a “service to the international business community,”[18] a fact that seems to conflict with the program’s administrative history and DOS’s previous efforts to restrict its availability away from business-only categories during the 30 years preceding this statement.
Things Change After 9/11
Ultimately, the events of September 11, 2001, would lead to DOS terminating the domestic revalidation policy indefinitely (that is, until the most recent proposed rule announcement). Following 9/11, Congress passed a series a national security-related laws, and included among them was the Enhanced Border Security and Visa Entry Reform Act of 2002. Among other measures, this law required the collection of biometric data (i.e. fingerprints) as part of all visa applications. Within two years, DOS determined that it was “not feasible” to collect biometrics from applicants within the United States and on June 23, 2004, the department announced the program’s termination as of July 16, 2004.[19]
Even before the program was terminated, however, problems began to emerge as DOS attempted to balance the convenience afforded by domestic revalidation with the national security needs in adjudicating visas. In a communication between AILA and DOS in March 2004, AILA’s DOS Liaison noted that the so-called “Reval Unit” was seeing significant processing delays and that revalidation requests were taking more than three months to process.[20] Moreover, because DOS policy at the time only allowed applicants to request revalidation within 60 days prior to their visa’s expiration date, applicants frequently found that their case remained pending after the visa had already expired. This, in turn, caused difficulties when planning travel around the visa’s expiration date and severely undercut the convenience that domestic revalidation was supposed to provide.
Questions Surround Domestic Visa Revalidation
This history of domestic revalidation raises several important questions as we wait for DOS to restart the program next year:
- Which visa categories will ultimately be made eligible for domestic revalidation? In the past, we have seen DOS expand the process too far and then have to contract the list later. Will we see that happen again?
- What processes will DOS put in place to ensure the domestic revalidation process runs smoothly? At multiple points throughout its history, we have seen instances where the volume exceeds DOS’s processing capacity, resulting in long delays which undercut the program’s intended convenience.
- Unlike in 2002-2004, will DOS be able to seamlessly incorporate national security measures into an effective domestic renewal process? Will applicants who are subject to administrative processing be allowed to benefit use the process? If not, doesn’t this severely hinder the precise people who would most benefit from renewing visas domestically?
- More fundamentally, who is domestic visa revalidation meant to convenience? The Executive Order which created it suggests that it was intended solely for foreign government officials, a position repeated by DOS within the Federal Register for its first 60 years of existence. However, in 2001, DOS stated it was also intended to service the “international business community.” If that is true, why not also foreign students studying at our colleges and universities? Do they not deserve to also benefit from the program? Or is the program’s intended purpose unimportant and is it DOS’s domestic processing capacity that actually determines which visa categories remain eligible?
[1] It is unclear whether this criterion would limit eligibility to nationalities without H-1B reciprocity fees, or those without reciprocity fees for any visa category. If the former, then nationals of the following countries would be ineligible to participate based on the DOS reciprocity scheduled available as of November 3, 2023: Algeria, Andorra, Australia, Saudi Arabia, The Bahamas, Bahrain, Belgium, Benin, Bolivia, Cameroon, Chile, Republic of Congo, Costa Rica, Croatia, Denmark, Djibouti, Ecuador, Eswatini, Finland, France, Wallis and Futuna, Ghana, Guatemala, Papua New Guinea, Saint Vincent and the Grenadines, Honduras, Iceland, Iran, Italy, Solomon Islands, Lebanon, Lesotho, Liberia, Malta, Mauritania, Mexico, Mozambique, San Marino, Namibia, Niger, Norway, Panama, Philippines, Samoa, Seychelles, Slovenia, Sweden, Switzerland, Taiwan (ROC), Tanzania, Togo, Turkmenistan, Tuvalu, Vanuatu, Yemen, and Zambia.
[2] See Executive Office of the President, Office of Information and Regulatory Affairs and Office of Management and Budget, https://www.reginfo.gov/public/jsp/Utilities/faq.myjsp (last visited Nov. 6, 2023); Exec. Order 12866, 58 Fed. Reg. 51735 (Oct. 4, 1993).
[3] U.S. Department of State, Bureau of Consular Affairs, Renewing A, G, and NATO Visa in the United States, https://travel.state.gov/content/travel/en/us-visas/other-visa-categories/visa-employees-nato/renewing-a-g-nato.html (last visited Nov. 6, 2023); and 22 C.F.R. § 41.111(b).
[4] Exec. Order No. 4210 (April 23, 1925).
[5] Id.
[6] See, e.g., 22 C.F.R. § 59.1 (1938); and 22 C.F.R. § 40.2(c)(1949).
[7] 26 Fed. Reg. 1111 (Feb. 7, 1961).
[8] 28 Fed. Reg. 5258 (May 28, 1963).
[9] 29 Fed. Reg. 19089 (Dec. 30, 1964).
[10] 35 Fed. Reg. 8275 (May 27, 1970).
[11] 38 Fed. Reg. 33603 (Dec. 6, 1973).
[12] Id.
[13] 39 Fed. Reg. 2480 (Jan. 22, 1974).
[14] 48 Fed. Reg. 54995, 54996 (Dec. 8, 1983).
[15] Id.
[16] Id.
[17] 66 Fed. Reg. 12737 (Feb. 28, 2001).
[18] Id.
[19] 69 Fed. Reg. 35121 (Jun. 23, 2004).
[20] See DOS Answers AILA Questions, Q.9 (Mar. 4, 2004)(AILA Doc. No. 04042164).
