Overview
On December 21, 2023 the Department of State published information on a pilot project to provide visa renewals in the United States. Currently, any foreign national who needs to obtain a new U.S. visa must leave the United States to have their passport processed by a U.S. consulate abroad. This costly, inconvenient, and unpredictable process has long been a source of frustration for visa holders, and their employers. Below we provide details on this long awaited pilot. As strong advocates for our clients, we sincerely hope that it will be a success and will be rolled out for everyone during 2024.
Key Takeaways
- The pilot starts on January 29, 2024 and will end on May 1, 2024.
- The pilot is limited to 20,000 applications.
- Only H-1B status holders who have an expired H-1B visa issued at a U. S. Consulate in India between February 1, 2021 and September 30, 2021 or issued at a U.S. consulate in Canada between January 1, 2020, and April 1, 2023 are able to apply.
- Family members on H-4 status are not eligible.
- The cost will be $205 per application. No refunds or transfers will be available regardless of the outcome.
- The application process will be initiated online and will be completed by physical submission of the applicant’s passport and supporting documents by mail.
- The State Department estimates processing will take 6-8 weeks. All applications will be adjudicated on a first in – first out policy. No expedites are available.
Limits of the Pilot Project
In the Federal Register Notice, the Department of State explains that it chose prior H-1B visas issued in Canada and India because “[t]he population of visa applicants in India and Canada is sufficiently representative of the global population and visa issuances during the referenced periods provide enough cases to make the pilot results meaningful, without overwhelming available resources.” Similarly, it notes that it chose to include only H-1B applicants, because including H-4s “created additional technical and operational challenges that cannot be resolved before the pilot launch date.” The Department of State also notes that, “limiting the pilot to only H-1B principal applicants will also maximize the Department’s direct impact on U.S. industry partners, whose H-1B employees may need to travel abroad for work purposes and risk being unable to immediately return if their visa is expired.”
Detailed Eligibility Requirements
The Department of State has set up strict eligibility parameters for applicants to be allowed into the pilot. Below, we discuss each one in turn.
- The applicant has a prior H-1B visa that was issued at a US Consulate in Canada between January 1, 2020 and April 1, 2023; or in India between February 1, 2021 and September 30, 2021. As described above, the Department of State anticipates that this group of applicants will provide it with a sufficient number of applicants and range of nationalities to test the system and train the work force will be processing the applications.
- Applicants may not be from a country that is subject to a visa reciprocity fee. While many visa applicants choose U.S. consulates in Canada for visa renewals, not all will be eligible for the pilot project. Reciprocity fees are determined diplomatically on a per country basis. Information on which countries have reciprocity fees for the H-1B visa can be found on the Department of State website: S. Visa Reciprocity. While many different passport holders will be eligible, including those from China, Colombia, India, Japan, Poland, Pakistan, Romania, Singapore, South Africa, and the UAE, others will not, including those from Brazil, Chile, and the Philippines. Potential applicants should review the reciprocity table before starting an application.
- Applicants must meet the waiver requirements for the in-person interview requirement. While many of these requirements are covered by other criteria in this list, several are not, and could impact eligibility for the program. Applicants who have ever had a visa refusal that was not overcome are not eligible. Applicants from Cuba, North Korea, Iran and Syria are not eligible unless, they also hold another citizenship/passport. Applicants who are listed in the Consular Lookout system or who would require a security advisory opinion or other similar clearance are not eligible to participate in the pilot.
- Applicants must have submitted ten fingerprints to the Department in connection with a previous visa application.
- Applicant’s prior visa does not include a “clearance received” annotation.
- Applicant does not have a visa ineligibility that would require a waiver prior to visa issuance. Situations where a waiver might be implicated include, a criminal record anywhere in the world, prior overstays or other visa violations, such as misrepresentation of material facts to the government during the process.
- Applicant must have a current, approved, and unexpired H-1B petition. As discussed below, applicants will be required to submit original I-797 H-1B approval notices as part of the application process. Potential applicants should ensure that this document is available by January 29, 2024 if they intend to apply.
- Applicant was most recently admitted to the United States in H-1B status. This requirement may limit eligibility for those who are currently in the Adjustment of Status (I-485) process and when returning to the United States on their most recent entry, used Advance Parole to be admitted.
- Applicant is currently maintaining H-1B status in the United States. Applicants will be required to provide paystubs or other evidence that they are actively employed by the H-1B sponsor on their petition.
- Applicant’s period of authorized admission in H-1B status has not expired.
- Applicant intends to reenter the United States in H-1B status after a temporary period abroad. This requirement will likely require the applicant to show some intent to travel abroad during the visa issuance period.
The Application Process
The Department will begin accepting online applications January 29, 2024 via a web portal set up for this purpose. To control the number of applications received, the Department of State will release approximately 4,000 application slots – 2000 for visas previously issued in Canada and 2000 for those previously issued in India on each of the following dates: January 29; February 5; February 12; February 19; and February 26.
Every application received will be counted against an approximate 2,000 maximum weekly limit each for Canada and India applications. According to the Department of state, “[o]nce the limit is reached, the online portal will be locked until the next tranche of slots are released for each participating group on the next application date. Applicants who are unable to apply on one application date may attempt to apply on any of the remaining application dates during the entry period. The application period for the pilot will close when all application slots are filled or on April 1, 2024, whichever comes first.”
Step One: Navigator and Registration:
To initiate the process, applicants must visit the web portal and proceed through a “navigator tool, which will assist applicants in assessing their qualifications for participation in the pilot.” The State Department does not anticipate that the navigator tool will be a 100% failsafe, therefore it is possible the applications “will be returned unadjudicated for failure to satisfy the requirements for pilot participation or adjudicated and refused based on failure to qualify for an interview waiver.”
Step Two: DS-160 Completion and Payment:
After passing the self-assessment, qualified applicants must electronically complete and submit Form DS-160, and pay the nonrefundable $205 Machine Readable Visa (MRV) processing fee. Payment may only be made using a major debit or credit card, and confirmation will be provide. Applicants who intend to participate in the pilot may consider starting on their DS-160s now, as this form requires significant detail on the applicant’s travel history and other personal information.
Step Three: Send Required Documents:
After online submission of the DS-160 and payment of the MRV fee, applicants will receive instructions through the portal to send their passports and other required documents. As currently drafted, the required documents will be as follows:
- DS-160 confirmation page, confirming a properly completed and electronically filed DS-160, Online Nonimmigrant Visa Application.
- One photograph (taken within the last six months), which meets the agency’s 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.
- The original or a copy of the applicant’s current Form I-797, Notice of Action.
- The original or a copy of the applicant’s Form I-94, Arrival-Departure Record
Upon receipt, the Department of State will do an initial review of the applications to determine whether they fall within the scope of the pilot. “Applications and passports that do not pass this initial sorting process will be returned to applicants unadjudicated, but the fee will be retained to cover processing costs. Applications that satisfy the initial sorting requirements are forwarded to a location where authorized Department employees will adjudicate those applications.”
Timing and Refusals
The State Department estimates that the average processing time for these applications will be 6-8 weeks from receipt of the passport. It intends to complete all applications by May 1, 2024. There is no option to expedite processing, but applicants can withdraw their application through the portal and request return of their passport, if emergent circumstances arise. “If the applicant withdraws their application during the adjudication process, it will be refused under INA 221(g) and the MRV fee will not be refunded. The INA 221(g) refusal will not prejudice any future application.”
Applications will also be refused under section 221(g) of the INA if the applicant fails to provide required documentation or information. However, “the Department will provide specific instructions to the applicant with an opportunity to provide the missing documents or information, and to correct any minor errors in the application, by April 15, 2024, before completing adjudication, if the State Department believes the applicant can overcome the refusal in time to complete adjudication by May 1, 2024. The Federal Register notice indicates that any applications with outstanding requests on May 1, 2024 will be officially refused. However, the normal INA 221 (g) policies apply, allowing applicants to resubmit their visa application without prejudice at a U.S. consulate on a future date. The State Department is not anticipating many denials for eligible applicants, as it specifically limited the scope of the pilot to applicants who were previously issued visas.
For more information or to find out if you qualify, please contact Valentine Brown or the Duane Morris immigration attorney you normally work with.