DHS’ 2022 Yearbook of Immigration Statistics
Each year, the Office of Homeland Security Statistics Resources publishes statistics on diverse immigration data, which includes its Yearbook of Immigration Statistics.
According to DHS, “The 2022 Yearbook of Immigration Statistics (2022 Yearbook)is a compendium of tables that provide data on foreign nationals who are granted lawful permanent residence (i.e., immigrants who receive a “green card”), admitted as temporary nonimmigrants, granted asylum or refugee status, or are naturalized. The Yearbook also presents data on immigration enforcement actions, including apprehensions and arrests, removals, and returns.”
One of the data points that I found most interesting in the 2022 Yearbook is the number and class of nonimmigrant admissions (as recorded by the I-94 system). For example, DHS admitted more than 96 million nonimmigrants in 2022, and while this may seem like a lot, it’s still significantly fewer admissions than our pre-COVID numbers wherein 2018 and 2019, DHS admitted more than 186 million nonimmigrants.
So, who did DHS admitted in 2022? How did these admissions compare to pre-COVID admissions in 2019? Below is an excerpt of some of the visa classifications that I work with the most:
And from which regions did these nonimmigrants come?
Which countries had the most nonimmigrants visit the United States in 2022? Below is a list of the top 10 countries.
Mexico - 13,644,287
Canada - 6,903,580
United Kingdom - 3,090,439
India - 1,793,061
France - 1,469,979
Germany - 1,404,348
Colombia - 1,124,998
Brazil - 1,063,680
Spain - 885,632
Italy - 865,392
Runner-ups include: Argentina, Australia, Chile, South Korea, and the Netherlands, who each had more than 500,000 foreign nationals visit the United States in 2022.
For more insightful data, see DHS’ 2022 Yearbook!
New USCIS Fees on April 1, 2024
On January 31st, USCIS published a new fee schedule, which will take effect on April 1, 2024, and significantly impact most employment-based petitions. Most notably, the new fee schedule will add a mandatory Asylum Program Fee to every Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker, filed by for-profit employers.
What is the Asylum Program Fee?
It is an additional fee that USCIS is charging to U.S. employers in order to “fund part of the cost of administering the entire asylum process” which are estimated by the Agency to cost over $400 million per year. (89 FR 6208).
USCIS “determined that the Asylum Program Fee is an effective way to shift some costs to…petitioners who have more ability to pay”--in other words, U.S. employers who wish to sponsor foreign nationals for temporary (I-129) or permanent (I-140) employment in the United States. (89 FR 6208).
In other words, because Congress cannot figure out how to effectively fund the asylum process so that USCIS can properly administer and manage it, which has resulted in a backlog of more than 3 million cases, USCIS has in turn decided to tax U.S. employers in order to fund the asylum program.
What does this mean for U.S. employers?
Below is a chart of the new USCIS filing fees, by process, that must be paid beginning April 1, 2024.
If Employers have H, L, O, E, TN or I-140 petitions that can be filed before April 1, 2024, then they should do so in order to save hundreds, if not thousands of dollars.
Any cases that will be filed with USCIS on or after April 1, 2024, must include the new filing fees. Failure to file with the proper filing fees will result in the case being rejected.
Employers should take particular care in ensuring the proper filing fees with this year’s H-1B cap petitions, which must be filed after April 1, 2024. USCIS is often delayed in issuing receipt notices for cap cases, and it can take 6 weeks or longer to receive confirmation that a petition has been accepted or rejected. If the wrong filing fees are used and the H-1B cap petition is rejected, the Employer may not find out until after the filing period has expired, which means that the prospective employee will lose their opportunity for an H-1B in Fiscal Year 2025 and will need to be entered into the lottery for Fiscal Year 2026.
H-1B Cap Season - FY2025 Considerations and Tips
As we are approaching February 2024, it can only mean one thing for employers and business immigration attorneys: the beginning of H-1B cap season for Fiscal Year 2025 (FY2025). This marks the start of the chaotic period from February to April when hundreds of thousands of H-1B cap registrations are prepared and filed with the hope of securing one of the 85,000 H-1B visa numbers available each fiscal year.
As every H-1B cap season creates significant anxiety and drama for immigration professionals, employers and foreign nationals, what are some positive actions we can take to mitigate these worries? Employers and foreign nationals should plan ahead, and communicate/collaborate meaningfully with their immigration counsel.
With so much at stake for U.S. employers and beneficiaries, we highly recommend that employers engage and collaborate with experienced business immigration attorneys to complete this process. Based on the lessons we learned from previous H-1B Registration periods, we offer the following helpful tips.
U.S. employers will need to immediately collect the following required information from the beneficiary (or their prospective employee):
Full legal name as listed in the Beneficiary’s passport;
Beneficiary’s gender;
Beneficiary’s date of birth (mm/dd/yyyy);
Beneficiary’s country of birth;
Beneficiary’s country of citizenship;
Beneficiary’s passport number; and
Whether the beneficiary possesses a Master’s (or higher) degree from a U.S. college or university.
Keep in mind that USCIS will most likely implement a new selection process this year in order to reduce chances for companies to game the system (and file multiple registrations for same beneficiaries). This new selection procedure will rely on the beneficiary's passport number, which is a unique identifier. USCIS has indicated that if a beneficiary does not possess a passport, they will not be able to be registered in the cap.
During FY2024, USCIS received over 483,000 registrations, more than 176,000 of which were for beneficiaries with multiple registrations, including one beneficiary with 83 registrations. In an effort to cut down on this fraud and misrepresentation, USCIS has promised to implement new selection procedures.
The U.S. employer will also need the following information about their company:
The Federal Employer Identification Number (FEIN);
Corporate headquarters address; and
Name and contact information, including cell phone number and email, of the person who is filing the H-1B registration on behalf of the Employer.
The process to prepare and electronically file H-1B registrations can be anxiety-laden and challenging, so it is essential to work with an experienced business immigration attorney. Follow me for more timely updates.
Form I-94, Arrival/Departure Record, and Holiday Travel
As 2023 comes to an end, many global travel restrictions have been lifted and we are entering the peak holiday travel season, it is important to revisit the Form I-94, Arrival/Departure Record, andits significance to foreign nationals who enter the United States as nonimmigrants.
What is the Form I-94, Arrival/Departure Record?
As a nonimmigrant who has been admitted to the United States, in addition to your passport, there is no document more essential to your lawful admission than your Form I-94, Arrival/Departure Record (“Form I-94”).
For nonimmigrants, legal authorization or permission to remain in the United States is controlled by the Form I-94. Nonimmigrants are issued a new Form I-94 upon each entry to the United States and may secure their Form I-94 through the U.S. Customs and Border Protection (“USCBP”) at https://i94.cbp.dhs.gov/I94/#/home.
One of your priorities upon each entry to the United States should be to print and review your Form I-94 and provide a copy to your attorney or HR representative upon each entry to the United States. Given the hectic nature of admissions at U.S. ports of entry and airports, there are numerous opportunities for the Form I-94 to contain errors in the class of admission and the “admit until date”, which is the expiration of the Form I-94 or the authorized period of admission.
What is the Relationship Between My Passport, Nonimmigrant Visa, Form I-797 and Form I-94 work together?
It is very unfortunate that many foreign nationals believe that their nonimmigrant visas control their period of stay in the United States. This mistake can lead to serious financial and legal consequences, as discussed below. The U.S. immigration system is unnecessarily complex and often confusing and there are unique interactions between your passport, visa, Form I-797 and Form I-94. Although a combination of these documents is required for entry into the United States, the most important documents that determine your period of authorized stay are your passport, Form I-94 and Form I-797.
Passports
To enter the United States, you must have a valid passport. Most nonimmigrants entering the United States are required to possess a passport that is valid for at least six months beyond their period of intended stay in the United States. [There is an exception to this rule, known as the “Six Month Club”. Citizens of countries included in the Six Month Club are only required to present a passport that is valid for their intended period of stay. See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/Six-Month%20Club%20Update122017.pdf.]
Possessing a passport that is valid for at least six months beyond your period of intended stay in the United States is essential if you are entering the United States in an employment-based nonimmigrant status.
Visas
Generally, nonimmigrants who wish to enter the United States must first obtain a valid visa. The validity period of a nonimmigrant visa is often dictated by the reciprocity agreements between the United States and a foreign country, and often do not coincide with the validity period of the I-797.
The type of visa that a person obtains determines what they are permitted to do in the United States. For example, individuals who receive B-1 or B-2 visas are permitted to enter the United States for temporary business or tourism activities, but are prohibited from working. A person who wishes to attend a U.S. college or university as a full-time student typically receives an F-1 or J-1 visa.
The nonimmigrant visa usually does not impact a person’s period of authorized stay. There are some exceptions to this rule. For example, certain countries have entered into Free Trade Agreements with the United States that enable their citizens to work in the United States based on applications that are filed through the U.S. Embassy in their home country. These include, for example, H-1B1 visas for nationals of Chile and Singapore, and E-3 visas for nationals of Australia. The employment authorization and lawful period of admission for nonimmigrants entering the United States in H-1B1 and E-3 status are directly limited to the validity period of their H-1B1 and E-3 visas.
The nonimmigrant visa determines when you may enter the United States and what activities you are permitted to engage in while in the United States, but usually does not determine how long you may lawfully remain in the United States.
Form I-797
Individuals who seek employment-based nonimmigrant visas, such as an L-1, H-1B or O-1 visa, must first have a petition approved by the U.S. Citizenship & Immigration Services (“USCIS”), which then issues a Form I-797, approval notice. The Form I-797 is used to secure the appropriate employment-based visa, which will permit the foreign national to enter the United States and work. The Form I-797 is typically valid for periods of one (1) to three (3) years, but can have shorter periods of validity, depending on the maximum period of stay permitted by immigration regulations.
The validity period of the Form I-797 should determine the validity period of the Form I-94, and the expiration dates of the two documents should be identical, although mistakes occur. To show the relationship between a person’s passport, visa, I-797 and I-94, we provide some hypotheticals below.
Jane is a citizen of Australia who is entering the United States on December 30, 2021, with an employment-based L-1B visa, which is valid to December 26, 2025. Jane’s Form I-797 is valid until December 26, 2023. Jane’s Australian passport is valid until September 15, 2022.
Admission: When Jane is admitted to the United States, she is given a Form I-94, which is valid until September 15, 2022, which is the expiration date of her passport, not the expiration date of her Form I-797, approval notice. Although Australia is part of the Six-Month club, this rule still requires Australian citizens to present passports that are valid for their intended period of stay, or in Jane’s case, until December 26, 2023.
Issue: If Jane does not check her Form I-94 and realize that it expires on September 15, 2022, she will likely overstay and begin accruing unlawful presence beginning September 16, 2022. If she remains in the United States until December 26, 2023, Jane will accrue more than one year of unlawful presence. Moreover, if she continues to work after September 15, 2022, she will be engaging in unlawful employment.
2. Rajesh is a citizen of India who entered the United States on November 30, 2021, with an employment-based H-1B visa, which is valid through September 30, 2024. He has a Form I-797, approval notice, which is valid through September 30, 2024 and his passport is valid until April 1, 2022.
Admission: When Rajesh was admitted to the United States, he was given a Form I-94 that will expire on April 1, 2022, which is the expiration date of his passport. As India is not a member of the Six Month club, his passport is required to be valid for six months beyond his period of intended stay or until at least March 2025.
Issue: If Rajesh does not check his Form I-94 and realize that it expires on April 1, 2022, he will likely overstay and begin accruing unlawful presence beginning April 2, 2022. If he remains in the United States until September 30, 2024, Rajesh will accrue more than two years of unlawful presence. Moreover, if he continues working on and after April 2, 2022, he will be engaging in unlawful employment
It is important to note that while CBP will fix errors that occur during admission to the United States, the above scenarios where a foreign national is admitted until the expiration date of their passport is not considered an error. CBP will not revise an existing Form I-94, or issue a new Form I-94, to a foreign national who enters the United States with a passport that expires before their intended period of stay.
What are the consequences if I remain in the U.S. after my I-94 expires?
If you remain in the United States beyond the expiration date of your Form I-94, you are deemed to have failed to maintain your lawful nonimmigrant status and may be subject to dire consequences including: (a) automatic cancellation of your visa; (b) permanent ineligibility to apply for a new U.S. visa except at the U.S. Embassy/Consulate in your country of citizenship or residence; and (c) the accrual of unlawful presence. If you accrue more than 180 days but less than 365 days of unlawful presence, you will be subject to a three (3) year bar on re-entry to the United States from the date that you depart. If you accrue 365 days or more of unlawful presence, you will be subject to a ten (10) year bar on re-entry to the United States from the date that you depart.
In addition, if you have failed to maintain your nonimmigrant status, you are not eligible to change your status to another nonimmigrant classification, extend your nonimmigrant status, or adjust your status to lawful permanent resident. In very limited circumstances, USCIS will excuse a nonimmigrant’s failure to maintain status and approve a change of status or extension of status retroactively, however, this discretionary relief is only available in extenuating or extraordinary circumstances. See 8 C.F.R §214.1(c)(4), which permits retroactive or nunc pro tunc approval of an extension of status or change of status petition which is not timely filed if there are extraordinary or extenuating circumstances that caused the failure to maintain status.
Moreover, if you fail to maintain your nonimmigrant status, you are subject to removal proceedings (being deported from the United States).
Conclusion
If you are a nonimmigrant, it is advisable that upon each entry to the United States you print and carefully review your Form I-94 and provide a copy to your employer and/or immigration attorney. This will allow you to catch any potential mistakes immediately. If you discover an error in your classification or period of admission, it is much easier to request that CBP fix the error either while you are at the airport, or shortly after, compared to discovering such a mistake months later, when you may have already fallen out of lawful nonimmigrant status.
If you discover that you have remained in the United States beyond the expiration date of your Form I-94, it is imperative that you seek legal counsel immediately to determine what options may be available to you.
EB-1A Client Success: Electronics Engineer
One of the things I enjoy about being a Business Immigration Attorney is the diverse occupations that we have the opportunity to work with. In particular, I love working with scientists and engineers, not only because their work is so critical to our nation, but also because it is challenging to translate what they do into simple terms without losing the complexity of their work. It is quite a balancing act!
I recently had the opportunity to prepare and file an EB-1A petition for an Electronics Engineer, which was approved by USCIS without an RFE.
The Client, who self-petitioned, had more than 15 years of experience in the Electronics Engineering field, with a specialization in the design and development of semiconductor chips and supercomputing technologies used in artificial intelligence and a diverse range of next-generation technologies, which are key national security and critical infrastructure areas identified by the Biden-Harris Administration.
Although the Client was clearly a leader in their field, they had no media or public footprint–all of their work was behind the scenes. We had a consultation about the EB-1 standards–I assessed their portfolio, advised them of the strengths in their case and areas of potential USCIS challenge. I also advised the Client of key steps that they could complete to strengthen their EB-1A case, which they did. We developed a strategic plan and aggressive timeline–we started preparing the EB-1A in October, filed in mid-November, and received an approval about a week later.
There were 3 keys to our success: (1) identifying the EB-1A criteria that best suited the Client’s work and achievements; (2) properly explaining, in layman's terms, the Client’s niche and showcasing the evidence that supported EB-1A classification; and (3) most importantly, actively collaborating as a team to ensure that all of the language used truly captured what made the Client extraordinary.
It is important to note that although the EB-1A requires submission of at least 3 out of 10 criteria where the beneficiary does not have evidence of a major internationally-recognized award, the more probative evidence that can be provided, the stronger the case. Through our collaborative effort, we were able to satisfy the following criteria: (1) the Client’s membership in associations in the field that require outstanding achievement of their members; (2) the Client’s original scientific and business-related contributions of major significance to the field; (3) the Client’s performance in a critical role (as opposed to leading role) for distinguished organizations; and (4) the Client’s receipt of a high salary or other significantly high remuneration in comparison to others in the field.
With the EB-1A approval, the Client is now able to transfer their old EB-2 priority date, which has retrogressed by 11 years, to the EB-1A preference and apply for lawful permanent residence.
If you are thinking about self-petitioning for EB-1A classification, it is essential to work with an experienced business immigration attorney who possesses: (1) the immigration law and know how; and (2) knowledge of your science and/or engineering industry and how it contributes to the national security and critical infrastructure goals of the United States; and (3) will work with you as a collaborative partner.
The Department of Justice Secures a $25 Million Settlement with Apple
On November 9, 2023, the US Department of Justice (DOJ), through its Civil Rights Division’s Immigrant and Employee Rights Section (IER) announced that it secured a $25 million landmark settlement agreement (Agreement) with Apple Inc. (Apple) to resolve employment discrimination allegations.
The Agreement between DOJ and Apple disclosed that from January 1, 2018 through December 31, 2019, IER found reasonable cause to believe that Apple engaged in a pattern and practice of discrimination based on citizenship status. More specifically, in the PERM recruitment process, which is required to sponsor foreign nationals for employment-based permanent residence, Apple’s recruitment practice showed a preference for Apple employees with temporary work visas instead of qualified and available U.S. workers (which include U.S. citizens, lawful permanent residences, asylees and refugees).
So, what (allegedly) did Apple do wrong? According to IER, Apple “departed from its standard recruiting process during required PERM-related recruitment” by: (1) not advertising positions on its external job website; (2) requiring applicants to mail paper applications instead of allowing them to submit electronic applications; and (3) failing to consider current employees for PERM positions if they submitted their applications electronically. By departing from its standard recruitment process, Apple used less effective, more onerous procedures that deterred U.S. workers from applying, which resulted in the receipt of zero to very few applications by mail. IER found that these procedures were designed to favor Apple employees with temporary work visas.
As part of this Agreement, Apple will pay $25 Million, which includes (1) $6.75 million in civil penalties and (2) $18.25 million in a back-pay fund for eligible discrimination victims. Moreover, for three years (from November 2, 2023 to November 1, 2026), Apple must: (3) draft a policy outlining the steps it will take in its PERM recruitment process and submit such draft to IER for approval; (4) submit an draft revisions of such PERM recruitment process to IER for approval; (5) prepare and submit to IER a semi-annual report of its recruitment procedures for PERM-related positions, detailing the PERM-position for which the application was filed, number of application received, the number of applicants interviewed, and the number of applicants deemed qualified for the position; and (6) provide IER approved training to all recruiters and personnel with any involvement in the PERM process.
While the PERM process is very problematic because: (1) it is not “real world” recruitment and (2) it is too often driven by foreign national employees who insist on including a laundry-list of skills, knowledge, experience and education that do not reflect the “minimum requirements” to perform the duties of the position, at the end of the day, the PERM process is required to include a good faith recruitment effort to demonstrate that there are no able, willing, qualified and available U.S. workers to perform the position.
According to the Department of Labor regulations, the PERM process is required to include a good faith recruitment effort to demonstrate that there are no able, willing, qualified and available U.S. workers to perform the position. Where an employer uses a recruitment process that discourages U.S. workers from applying (such as requiring applicants to mail an application instead of accepting an electronic submission), whether such behavior on part of the employer is willful and purposeful, or inadvertent error and unintentional, it is more likely than not that IER will find a lack of good faith on part of the employer.
The Agreement is a very good reminder for employers to revisit their immigration policies, in particular, their PERM recruitment policies, to determine if such policies show good faith or a lack thereof. If the recruitment policies clearly favor nonimmigrant employees over U.S. workers, the employer may find themselves garnering free publicity in the form of an IER or DOJ settlement announcement as well as steep fines and supervised recruitment.
DHS Proposes Changes to the H-1B Program
On October 23, 2023, the Department of Homeland Security (DHS) will publish a Notice of Proposed Rulemaking (NPRM) to “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” Some of the proposed amendments will also impact other nonimmigrant classifications, including F-1 visa holders, and those that are filed on Form I-129, Petition for Nonimmigrant Worker.
Written comments must be submitted on or before December 22, 2023. I would recommend that immigration practitioners and companies that employ H-1B workers seriously consider submitting comments to NPRM, as this is one of the few times that we will have an opportunity to offer our perspectives and concerns and proposed regulatory changes.
This NPRM is very ambitious in the number of changes that DHS is looking to make to the H-1B program. Some of the proposals are not surprising and are merely an effort to codify case law as a result of the numerous lawsuits that USCIS has been involved in. Other provisions seem like a stark overreach in administrative authority, where USCIS is seeking to re-adjudicate certifications made by the U.S. Department of Labor (DOL). It is not clear if these new proposals will in fact result in fewer Requests for Evidence (RFEs) or provide adjudicating officers with more authority to issue RFEs.
The most eye-opening part of this NPRM is the data provided by DHS, which showed the significant amount of fraud that has taken place in the H-1B registration system by a small number of companies that collectively filed thousands of multiple registrations for the same beneficiaries.
Below is a summary of the NPRM and regulatory revisions that DHS is seeking to make.
Revising the regulatory definition of “specialty occupation”, including an explanation that (a) “normal” does not mean “always” in the context of an occupation requiring a particular educational degree; and (b) where an occupation may be filled by a range of degrees, there must be a direct relationship between the required degree field(s) and the job duties.
Clarifying when an amended or new H-1B petition must be filed because of a change in the place of employment (codifying Matter of Simeio Solutions, LLC)
Codifying the Deference Policy to state that if there has been no material change in the underlying facts (same parties, job duties and location), adjudicators should defer to a prior determination.
Revising the regulations to expressly require that a petition seeking an extension of status or amendment of stay (even without a request for an extension of the validity period) be accompanied by evidence of maintenance of status, which would impact any nonimmigrant visa petition (NIV) filed on Form I-129, Petition for Nonimmigrant Worker.
Eliminating itinerary requirement for H petitions because this information is repetitive of the information in the Labor Condition Application (LCA).
Allowing petitioners to submit requests to amend validity periods in the I-129, where the validity of the requested period expires before the petition is adjudicated, such as in cases where there is a Motion to Reopen/Reconsider.
Revising the definition of employers who are exempt from the H-1B cap by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity.
Revising the requirements for beneficiaries to qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose.
Extending the F-1 cap-gap for authorized period of stay and employment authorization, for F-1s who are chosen in the H-1B lottery, from October 1st of that fiscal year to April 1st of that fiscal year. For example, if an F-1 student has their H-1B registration selected and a non-frivolous H-1B petition is filed for a change of status to October 1, 2024, the F-1 student’s cap-gap would be extended to April 1, 2025.
Permitting employers to request an employment start date for H-1B cap-subject petitions that are after October 1st of the relevant fiscal year, so long as the start date is within six months of the date of filing (codifying Acquia Inc, et al., v. USCIS)
Reducing H-1B registration fraud/abuse by selecting a unique beneficiary (one beneficiary based on passport number) instead of selecting registrations.
Prohibiting related entities from submitting multiple registrations for the same beneficiary.
Enabling USCIS to deny H-1B petitions or revoke approved H-1B petitions where the underlying registration contained false attestations or was otherwise invalid.
Improving the integrity of the H-1B program by: (a) codifying USCIS’ authority to request contracts; (b) requiring that the petitioner establish that it has an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date; (c) ensuring that the LCA properly supports and corresponds with the petition; (d) revising the definition of “United States employer” by codifying the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date; and (e) requiring that the petitioner have a legal presence and be amenable to service of process in the United States.
Clarifying that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
Codifying USCIS’ authority to conduct site visits and deny or revoke approved H-1B petitions for the employer or third party site’s refusal to comply with site visits.
Clarifying that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, as opposed to providing services at a third party location, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation. (Codifying Defensor v. Meissner)
Creating “use or lose” provisions to require beneficiaries of approved H-1B cap petitions to timely enter the U.S. and commence employment with the petitioner, as there is “a significant percentage of H-1B beneficiaries do not enter the United States within six months of the requested employment start date or H-1B petition approval date, whichever was later, or within 90 days of the visa validity start date. The data also show a large percentage of new or amended petitions received before the beneficiary’s arrival in the United States, suggesting that there may not have been a bona fide job opportunity available at the time of filing and the initial petition filed was simply to secure an H-1B cap number for the worker.”
We will be taking a deeper dive into some of these proposed changes to the H-1B program, so stay tuned!
The Art and Science of Architecture
This past weekend we had the privilege of attending a fundraising Soiree at Frank Lloyd Wright’s Fallingwater, the iconic vacation home built on a waterfall.
In the early 1930s the department store magnate Philip Kaufmann asked the very famous modern architect, Frank Lloyd Wright, to build his family a permanent vacation residence in the woods just outside of Pittsburgh, Pennsylvania.
Wright, who was already famous for turning his back on the compartmentalized architectural style of the Victorian era, was one of the first innovators of what would become the open plan Mid-Century Modern home that we are familiar with today. Recognized as an innovator and rule-breaker, Wright built the Kaufmann’s vacation home on top of a waterfall to coexist with the flow of the water, rather than build at the base of the waterfall where the natural feature would be visible to the inhabitants of the structure.
The house, with its daring cantilevered balconies jutting out over the rushing water (technologically innovative for the time) is sculpturally stunning. Once inside Fallingwater, you cannot see the waterfall, but you can hear it. Wright wanted the inhabitants of this modern structure to live with the waterfall rather than treat it as a pretty postcard view.
But it is the intimate nooks and crannies everywhere throughout the structure that reveal the genius of Wright. There are so many spaces, inside and out, cozy or expansive, that invite rest and contemplation. No matter whether you are inside Fallingwater, or enjoying one of its many balconies, there is a unique feeling of harmony between the structure and the environment.
Fallingwater, August 12, 2023
Architecture in general is something that is close to our hearts and is a great topic for a deeper dive into O-1s, something equally near and dear to us. And architecture is one of those rare professions that is both art and science and therefore gives us the flexibility to decide what kind of O-1 Visa best suits the petitioner.
More than any other structure we’ve seen, Fallingwater embodies the practical blended with the fanciful, the functional joined with the spiritual in a way that really brings home the notion that architecture is a unique discipline that can cross over the lines of categorization when petitioning for an O-1 Visa.
BAHÁ’Í-TEMPLE (Ceiling) in Chile
Because architecture embodies both art and science, that gives us the flexibility to decide whether the architect has a better chance of getting an O-1A or an O-1B petition approved. In other words, applying as a kind of engineer or scientist, in the case of the O-1A. Or would it be better to petition as an O-1B, wherein the architect is presented as an artist? For this profession, we have a choice.
Architecture as Art
To make the argument that architecture is art one can begin by emphasizing the beautiful, graceful, aesthetic and sculptural aspects of the structure. We can also talk about the “feel” or the “soul” of a place, which some would define as the “spiritual” component of a structure.
Generally speaking architecture, as opposed to engineering, is rooted more firmly in the world of artistic expression, requiring a variety of artistic expertise in addition to considerable technical building skill.
The visual, sculptural aspects of the design of buildings are easy to appreciate. The spiritual might not be as easy to define, but often when speaking of the “feeling” of a space people use words like serenity, energy, peacefulness, atmosphere and mood.
An architect who is able to evoke these emotions with their buildings is certainly operating in the world of art.
BAHÁ’Í-TEMPLE (Exterior) in Chile
Very often an architect will push the artistic aspect of a structure even further and prioritize the aesthetic over the functional, creating seemingly impractical design details meant to evoke awe, wonder or contemplation, much like the flying cantilever balconies of Fallingwater or the more contemporary metallic curvilinear surfaces of the Walt Disney Concert Hall by Frank Gehry.
Some of the best examples of architects emphasizing the artistic over the functional to evoke a contemplative or reverent mood can be seen in designs of places of worship. With these structures the artistic and sculptural elements of designed spaces for humans to inhabit are raised to the highest level.
So, taking this into account, how do we show that an architect qualifies as an artist for O-1B classification?
In order to qualify as a person of “extraordinary ability” in the arts, a beneficiary must have “sustained national or international acclaim or distinction, which USCIS defines as possessing “a high level of achievement in the field of arts, as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.”
In our experience, some of the criteria that an architect could satisfy for O-1B classification includes, but is not limited to:
Evidence that the architect has achieved national or international recognition for their achievements;
Evidence that the architect has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation;
Evidence that the architect has received significant recognition for their achievements from organizations, critics, government agencies, or other recognized experts in the field; or
Evidence that the architect has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field.
USAF Chapel - Exterior
Architecture as Science
Viewed from the purely technical side, architecture is the science of designing buildings and other structures to meet functional, technical and aesthetic requirements. It is a discipline that bridges the theory of design with the practice of construction, taking into account landscape and environmental considerations as well as naturally occurring (wood and stone) and human-made (steel and concrete) materials.
In order to qualify as an architect of “extraordinary ability” in the sciences, an individual must have “sustained national or international acclaim or distinction”, which USCIS defines as possessing a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.
USAF Chapel - Interior
In our experience, some of the criteria that O-1A architects typically meet include:
Evidence of that they received a nationally or internationally recognized prize or award for excellence in architecture, such as the Pritzker Architecture Prize, AIA Gold Medal, or American National Design Award, to name a few;
Evidence of their membership in architectural associations that require outstanding achievements of their members as judged by recognized national or international experts in the field, such as AIA Fellow membership;
Published materials in professional or major trade publications or major media about them and their architectural work;
Evidence of their original architectural contributions of major significance in the field;
Evidence that they have written scholarly articles about architecture, that have been published in professional journals, or other major media;
Evidence that they have been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
Evidence that they have either commanded a high salary or will command a high salary or other remuneration for their architectural services.
Architecture is one of those incredible fields, where accomplishments can be stunning, both artistically and technically, qualifying an individual to be extraordinary in the arts and sciences. If you ever have an opportunity to visit Fallingwater, or any other structure created by Wright, we highly recommend doing so.
This article was co-written by Mike Pulcinella of The Pulcinella Agency (https://www.pulcinellaagency.com/). Mike is an incredibly talented artist in his own right as well as a very skilled immigration agent. To learn more about Mike, visit The Pulcinella Agency or Mike’s LinkedIn page (https://www.linkedin.com/in/mike-pulcinella-3860502/).
Illogical Immigration Policies
Recently, two States have made international news for their anti-immigration stance. Yes, Texas and Florida, I’m talking about you.
When you consider the very positive impact that immigrants and immigration have had on the United States and more specifically, Texas and Florida, it makes you wonder why these States would engage in actions that clearly show disdain, if not outright hatred for immigrants.
Let’s look at each State’s immigrant population and what they contribute:
Numerous studies have concluded what the data above show: beyond bringing a wealth of cultural knowledge to our country, immigrants boost the economy, promote innovation through their entrepreneurial spirit, and improve productivity by being active members of the workforce. All of this in turn, increases revenues throughout our nation.
Given the significant community, employment and societal value that immigrants (documented and undocumented) provide to the States of Florida and Texas, it is irrational for these States to engage in such anti-immigrant actions.
August 2023 Visa Bulletin - Retrogression Nightmare
On July 7th, the Department of State (DOS) published the August 2023 Visa Bulletin, announcing bad news in terms of immigrant visa (IV) availability, with significant visa retrogression for employment-based first preference (EB-1) IVs for India and worldwide retrogression of employment-based third preference (EB-3) IVs. Visa retrogression occurs when more people apply for a visa in a particular EB category or from a particular country than there are visas available for that month, as described in more detail below.
The Immigration and Nationality Act (INA) established the annual number of family- and employment-based (EB) IVs. Under INA §201, there are 140,000 IVs available each year for EB immigration. This number is further reduced by the per-country limitations established under INA§202, which states that no more than 7% of the IVs issued per year can go to any one country. In essence each country is allocated no more than 7% of the annual EB IVs or 25,620 per year. Once a country reaches that limit it is considered “over-subscribed” and IVs become unavailable or “retrogressed”.
Although the world has changed significantly since 1990 (more than 30 years ago) when these IVs and per country limitations were established, and the demand for IVs has far-exceeded their availability, Congress has not amended the INA to accommodate this need. This in turn, has led to our current situation where people are waiting more than 10 years to legally obtain their permanent resident status. (The wait is even longer for some family-based IV categories.)
For example, the August 2023 Visa Bulletin reflects a retrogression of 10 years for EB-1 IVs for Indian nationals. In July 2023, EB-1 IVs were available for Indian nationals with a priority date of February 1, 2022. As of August 1, 2023, EB-1 IVs will only be available for Indian nationals with a priority date of January 1, 2012. The DOS states that this has occurred because:
India is oversubscribed, and therefore subject to prorating under INA 202(e). Until now, applicants chargeable to India had been able to receive prior unused numbers within EB-1 under INA 202(a)(5). With a worldwide final action date being set for EB-1 because the demand is greater than the number of visas remaining, the Department can no longer issue EB-1 visas without regard to the per-country numerical limitations and so applicants from India are no longer able to receive EB-1 numbers under INA 202(a)(5). Having reached their limit for FY-2023 within EB-1, India will be subject to an EB-1 final action date of 01JAN12, the oldest priority date of an EB-1 applicant (many Indian EB-1 applicants have priority dates from 2012-2015 because of priority date retention based on previously-approved petitions in the EB-2 or EB-3 categories).
According to the DOS, EB-1 IVs for Indian nationals may progress in October 2023 (which is the start of the new fiscal year), however, this is dependent on: (a) the demand for EB-1 visas for Indian nationals and (b) the 2024 fiscal year annual limit on EB visas.
For many EB immigrants and their employers, families and immigration counsel, the monthly Visa Bulletin is often met with significant anxiety. Where it brings joy, it is often limited to a very short period of time — 30 to 60 days — and more often than not, it delivers bad news by extending the length of time foreign nationals have to wait to obtain their lawful permanent residence. In many instances, the time that it takes for IVs to become available greatly exceeds how long immigrants can remain in the U.S. and maintain their lawful status (because each nonimmigrant visa classification also has a maximum period of stay).
With immigration, nearly everyone has an opinion and I often hear or read statements that “I support immigration if people do it like my parents/grand parents/great grand parents did it” or “people should just wait in line like my family did” or “I only support legal immigration”.
Well, I have news for you: this immigration system isn’t your parents, grand parents or great grand parents immigration system. Many of the people who make such claims can trace their family’s immigration to the U.S. back to the 1800s (1830s to 1890s) when more than approximately 15 million people, mostly from Europe, immigrated to the U.S. There were no quotas and no wait times then. If you could afford to get on a ship, survive the the terrible trip to the U.S., and pass the physical examination, you were permitted to enter the U.S. as an immigrant.
Leaving aside some of the exclusionary laws passed by Congress (the Chinese Exclusion Act), the U.S. did not pass a quota-based immigration system until the Emergency Quota Act of 1921. Such restrictions have continued to date, causing a significant backlog and delay in the process to become a permanent resident. Today, foreign nationals may wait more than 10 years to become a permanent resident based on employment.
The people who claim that they only support immigration if foreign nationals wait like their parents/grand parents/great grand parents are simply disingenuous because their families did not have to wait 10 or more years. As a nation, we are known for our desire or need for instant gratification. Look at the number of fights that happen because people have to wait in any line (traffic, airport, groceries, etc.). Would the average person in the U.S. wait 10 years to obtain a driver’s license? How about a passport? How about permission to travel abroad.
Here’s a different way to think about it: How would you feel if you completed all of your course work for a college degree and graduated after 4 years, but were told that you had to keep paying to “maintain your student status” for the additional 6 years that it would take to get your actual diploma because Congress established a quota on how much diploma paper could be printed each year. And because of the backlog of people waiting for their diplomas before you, it may take an additional 7 years before you could receive your diploma. You need this diploma to get a decent job, paying a livable wage, but it may take you 13 years before you receive the actual diploma — not because you did anything wrong, but because the demand for diploma paper far exceeds the supply.
Your prospective employers don’t understand why you just can’t get your diploma the way their parents and grand parents did. Sounds familiar right? Except you won’t face deportation or the possibility of being separated from your family and community. Does this seem fair or equitable to you? Most likely not.
Congress really needs to do better by the thousands of foreign nationals who meaningfully contribute to our country. We need a reformed immigration system that allows our EB IVs to become lawful permanent residents faster and more efficiently.
CBP Announces ESTA Ineligibility for Travelers Who Have Been Present in Cuba
On July 6, 2023, U.S. Customs and Border Protection (CBP) announced that dual citizens of Cuba and a Visa Waiver Program (VWP) country, and citizens of VWP countries who have been present in Cuba are ineligible for ESTA, which is the Electronic System for Travel Authorization.
The VWP allows citizens from 40 participating countries to travel to the U.S. for tourism or business for stays of 90 days or less without obtaining a visa. In order to travel under the VWP, travelers must possess an ESTA approval prior to travel to the U.S.
However, being a dual citizen of country designated as a State Sponsor of Terrorism (SST), will make a person permanently ineligible for ESTA. Moreover, if a citizen of a VWP country has been present in an SST country on or after March 1, 2011, their ESTA will be revoked by CBP. (There are limited exceptions to the revocation rule for diplomatic or military travel in the service of a VWP country).
Countries designed by the U.S government as SST include:
Cuba
Iran
Iraq
North Korea
Sudan
Syria
Libya
Somalia
Yemen
Any VWP citizen who possesses ESTA should avoid traveling to the countries that are designated as SST. Such individuals will not be barred from traveling to the U.S., but will not be permitted to do so under the VWP and ESTA. Instead, such individuals will be required to apply for a B-1/B-2 visa at a U.S. Embassy or Consulate abroad.
Notes from the AILA Annual Conference
The AILA Annual Conference (AC23) took place in Orlando, Florida from June 21 to June 24 and was a great learning opportunity, where some of the field’s most knowledgeable practitioners shared their experiences and insights.
Below, I’ve included a summary of some of the most important points that I learned.
Wednesday, June 21, 2023
Obtaining The Elusive NIV Consular Appointment and What to do Once You Get it
NIV intent does not mean that the FN must prove their intent to return to their home country, only that they intend to leave the U.S. It is important to keep this in mind if country conditions are challenging the FN’s home country because of natural disasters, war, political instability, etc.
TCN - usually eligible to apply wherever they are lawfully present – for example if a person from China is legally in London for tourism or business purposes, they should be able to apply for an L-1 or H-1B in London
Highly unlikely (and unrecommended by panel) to try to get a B-1/B-2 as a TCN
Some countries will absolutely not adjudicate TCNs (Panama and Mexico)
Wait times on DOS website do not reflect TCN wait times
Always prepare clients for consular interviews.
In most cases, consular officers will make up their minds in 3 minutes or less
Client should be able to explain all facets of their job in the U.S. and abroad and how they qualify for visa classification
Remote and Hybrid Workforce Issues and Trends
DOL most likely won’t issue FAQs for new PERM form until they start adjudicating them in about 10 months
Remote workforce
This is highly problematic where the FN has authority or prerogative to change location at will. Employer may need to file multiple amendments
PERM
Farmer memo is for “roving” employees or unanticipated worksites, not for “hybrid” or “remote” but it’s the best we’ve got
The new form - where do you address the telecommuting issue? Section FC, other geographic areas where work is performed. This is where panel is listing telecommuting issues and roving employees
What to do when a company has no HQ and all employees are remote/WFH?
Does NOF at registered address, shared workspace
If there is a change in the worksite for the job because PWD has been pending so long, what to do?
Need to do a PWD unless you can preserve the original worksite wherein the employer says that the FN will return to the worksite.
Thursday, June 22nd
Workshop Deep Dive in responding to H1B RFEs
USCIS is issuing RFEs for maintenance of status, where the FN has worked with OPT and then several rounds of CPT
RFEs where there is a change in work location (prior to filing LCA and amended petition)
Amended petition should be filed before work in new location (different MSA) begins
Employers need to keep track of where FN is working and living especially if remote work/WFH is permitted
Uptick in specialty occupation RFEs
Read RFE carefully especially if case law is cited because it is often misquoted
Labor Condition Application: More than meets the eye
The new SOC codes also include some new occupations, such as Project Management Specialist
Best Practice: Employers should consider creating and implementing a policy about foreign national employees moving without notice because there is the potential to trigger LCA violations as well as a failure to maintain status for those in H-1B, H-1B1 and E-3 status
If an FN works in a location not covered by an LCA, there is a status violation
Until the regulations are changed, where an FN works from home, the LCA needs to include the home address and the LCA must be posted at the FN’s home
Keep in mind that FDNS can show up at any address listed on the LCA, including the FN’s home address
Wage and hour violations
Fines and debarment are possible penalties for LCA violations but the DOL is issuing more debarments from the H-1B program now
Friday, June 23rd
Hot topics in compliance including form I-9
The new Form I-9 is on the horizon with a final rule that permits permanent virtual solution.
The new rule will come out in August
The new permanent virtual solution may not be available to all employers – there will be a lot of requirements to use this solution
Physical inspections of I-9 documents (for employees on-boarded virtually/remotely) must be completed by August 30th
Be careful using electronic I-9 systems — employers will be held responsible for violations caused by software
Outer continental shelf (OCS) workers do not need to do I-9s because the OCS is not subject to jurisdiction of the U.S. Even if the OCS worker is paid from U.S., the employer is not required to complete and I-9 for OCS employees
E-verify
Mandatory in certain circumstances: federal government/contractors, several States, and some jurisdictions within States. Even if an Employer has 1 employee in these jurisdictions (working remotely), the EMployer must use E-verify
E-Verify must be completed within same timeframe as the I-9
If the employee requires reverification, re-verify the I-9, but do not complete another e-Verify entry
Required to employ STEM OPT employees
DOL Open Forum
Work load data
PERM submissions remain very high, with more than 79,000 cases filed in the first half of 2023
23% more PWR for PERM cases filed in first the half of 2023
Workload doubled due to increase in H2A numbers
Temporary visas have been prioritized over PERM applications and have shifted analysts away from PERM cases
Submit questions about the new 9089 on the FLAG system and these will be turned into FAQs by the DOL
The more feedback that is provided, the more quickly DOL can resolve issues
For fields that require dates, but specific dates are not available, the DOL is working to amend PERM to allow an entry of “N/A”
Audit responses
Best Practice: choose one method, either mail or electronic, but do not submit responses using both methods.
The DOL prefers electronic submissions
9141 issues
H-1B prevailing wage can be linked to new PERM 9089
A PWD that expires on June 30th for linking with PERMs in July – the DOL is aware and will issue guidance
The DOL will issue guidance on linking multiple PWDs (where there are more than 2 sets of requirements) but if you come across this, email the FLAG help desk
PWDs are issued with an annual salary. You cannot list an hourly wage on the 9089 and must use the annual wage. However, the NOF can use the hourly wage so as long as it is equivalent to annual wage
With regard to determining whether the requirements exceed the SVP, the DOL uses ONET to determine what is normal to the occupation
Physical posting of the NOF is still required
Employers no longer need to register to create a PERM account and will no longer receive post-filing emails
No expedites available for prevailing wage requests or PERM adjudications
OFLC will change wages on July 1, 2023
Risky business: permissible and impermissible activities
It is permissible to manage your own investments while in the U.S. in B-1/B-2/ESTA status
Sometimes it is a good idea to have an FN who is eligible for ESTA or visa waiver apply for a B-1/B-2 visa if they travel to U.S. frequently or stay beyond 90 days
ESTA will be canceled permanently if the FN visits Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen
B-1 in lieu of H-3 (admission for 1 year) and in lieu of H-1B (admission for usually 6 months)
The FAM says there is no such thing as a misrepresentation by silence
USCIS says the opposite – omission can be misrepresentation
Saturday, June 24th
Prevailing wage determinations
Virtual businesses are posing a problem – what address should be used as the company’s HQ? The DOL requires an address to be listed so that:
interested applicants may submit a resume for a job, and
there is a location for site visits.
The Farmer memo deals with “roving” employees and is not really meant for “remote” employees, but the DOL says it’s still valid. If you cannot anticipate where the employee will work at the time of filing, list the HQ and list all possible locations where the FN will work
The DOL is reluctant to issue a PWD with XX-XX99, all other occupations SOCs, especially for IT occupations. BALCA says these are legitimate, so if the DOL won’t issue a PWD using an “all other occupation” classification, you can challenge the determination and ask for reconsideration
Wage transparency laws: If a person can work remotely from anywhere in the US, you need to comply with wage transparency laws
With batch recruiting be careful that the lowest wage is the one that can be listed on the 9089
Mastering the complexities of PERM
There has to be a physical office where applicants can be referred and for the NOF to be posted.
100% virtual companies are highly problematic. If there is an audit the employer will most likely not be able to get the PERM approved
For worksite location selections on the PERM form, always pick “business premises” (not “employee’s home” even if the employee is working remotely).
The DOL admitted during the open forum that the people who created the new PERM application do not understand the regulations and do not prepare or adjudicate PERM applications as part of the normal job duties
This form was not Beta tested – we are doing the Beta testing by filing our PERM applications (which may be denied 10 months from now).
Audit triggers - section G - answering yes to any of these, you will need to explain in 1,500 characters or less. If explanation is sufficient, it will not cause an audit.
Panelist thinks you should answer yes to 9 if you have a JZ 7- 8 (e.g. software developer) and require bachelor’s and 5 years or master’s and 3 years. This is the business necessity issue.
The old question is below and you could get away with saying “yes”--that the job requirements were normal – if the requirements were the employer’s normal requirements you could say “yes”. But now, the question now is “do the requirements exceed teh SVP”?
Equal pay laws/salary transparency laws
Hawaii just signed bill - starts January 2024
Illinois - includes salary and all benefits - starts January 2024
No more PERM email confirmations for employers to respond to
Meet me on July 11th!
On July 11th, I will be a panelist on AILA's "Down to Details: Jazzing Up the J-1 Training/Internship Placement Plan (DS-7002)".
Please join us if you're interest in learning about J-1s, specifically:
(1) An overview of the J-1 Visa
- Exchange visitor applicant and host organization eligibility
- Role of the visa program sponsor
- The consular application process
- Program expectations
(2) Training/Internship Placement Plan, Form DS-7002
- Tips for assembling a successful and comprehensive plan
- Importance of planning and including cultural activities
- Risks associated with completing an incorrect form
(3) How sponsors measure training program success
I look forward to seeing you there (on Zoom)!
https://agora.aila.org/store/products/view/jazzing-up-the-j-1-training-internship-placement-plan
Client Alert: Changes to the FAM for E Visa Applicants
In May 2023, the Department of State (DOS) updated the Foreign Affairs Manual (FAM) relating to E visas. In this client alert, we highlight 2 of the most concerning changes.
1. E-3 visas & intent to depart the U.S.
The DOS modified 9 FAM 402.9-8(G), which discusses the intent to depart requirement for E-3 visa applicants. The new language states:
“An E visa applicant is presumed to be an immigrant until the applicant establishes to your satisfaction that they are entitled to E nonimmigrant status. The standards for applying INA 214(b) described in 9 FAM 302.1-2(B) apply to E visa applicants.”
With the addition of this language, consular officers may apply INA §214(b) more often to deny E-3 visa applications because they presume the applicant is an “intending immigrant.”
Our recommendation: E-3 visa applicants should provide sufficient information/documentation to demonstrate that they have strong ties to their home country that will require them to leave the U.S. at the end of their temporary stay.
2. Spouses & children of E visa applicants
The DOS modified 9 FAM 402.9-9, which now treats spouses and children (dependents) of E visa applicants from E Treaty and non-Treaty countries differently.
Consular officers are now instructed to apply the visa reciprocity applicable to the dependent’s nationality and not that of the principal applicant’s nationality, when issuing E visas.
This is a drastic change from the DOS’ visa policy, which previously stated:
"The spouse and children of an E visa applicant receive the same visa validity and number of entries and are required to pay the same reciprocity fee, if applicable, as the principal applicant."
So, what would this look like?
Where the E-2 principal and their spouse are Italian, both applicants would receive visas valid for 60 months.
Where an E-2 principal is Italian and their spouse is Bangladeshi (Bangladesh has an E-2 Treaty), the Italian principal would receive visa for 60 months while the Bangladeshi spouse would receive a visa for 3 months.
Where an E-2 principal is Italian and their spouse is Vietnamese (Vietnam does not have an E-2 Treaty), both the Italian principal and the Vietnamese spouse would receive visas valid for 60 months.
Our recommendation: Applicants for nonimmigrant visas with dependents who have different nationalities should check the DOS’ reciprocity website to determine the length of the visas that will be issued to their dependents. It is important to know, in advance, if their dependents’ visas will be issued for a shorter validity period so that travel plans can be made.
For example, if a dependent’s visa will only be valid for 3 months, it is important to schedule additional time into international travel so that the dependent can apply for a new visa when their current one expires.
Link to FAM with changes to the E visa classifications: https://fam.state.gov/fam/09FAM/09FAM040209.html
Link to E-1/E-2 Treaty:
Countries: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
Link to DOS’ reciprocity website: https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html
Domestic Visa Revalidation Is Returning to the U.S.!
Before you get too excited, I want to point out two things: (1) the visa revalidation option will only apply, initially, to those seeking to renew H and L visas; and (2) the revalidation program will be launched later this year, but a definitive date has not been announced.
On February 9, 2023, Bloomberg Law published an article based on its interview with Julie Stufft, Deputy Assistant Secretary for Visa Services, Bureau of Consular Affairs, U.S. Department of State. Deputy Assistant Secretary Stufft confirmed that the Department of State would be launching the pilot domestic visa renewal program later this year, initially for foreign nationals seeking to extend their H and L visas, but could expand the program to include other visa classifications in the future.
This is good news of course! Immigration practitioners, U.S. employers and foreign nationals have been advocating for a domestic visa renewal process since the COVID-19 pandemic led to the shutdown of numerous U.S. embassies and consulates abroad. This in turn resulted in a significant backlog of pending visa applications, the unavailability of visa appointments, foreign national employees being stuck abroad for many months, and an interruption in work for U.S. employers.
However, the Department of State noted that one of the challenges in implementing the domestic visa renewal program is the difficulty in creating a new consular division in Washington, D.C.
Again, this is good news, but I can't help but wonder why a program that had already been in place for many years has taken so long to resurrect.
Domestic visa revalidation IS NOT new—the Department of State already operated a very popular and very successful visa revalidation program through its Consular Division in Washington, D.C. until 2004. The old visa revalidation program enabled foreign nationals in the United States in E, H, L and O nonimmigrant visa status, among others, to renew their visas through the Consular Division in Washington, D.C. This visa revalidation program ended in 2004 because the Department of State was unable to meet the biometrics data collection requirements created by new national security laws enacted after the September 11, 2001 terror attacks.
Although it may take several more months to be implemented, the new visa renewal program will be an important and welcomed benefit for many foreign nationals, their families and U.S. employers and we are happy to see it return.
I will continue to monitor the Department of State’s visa renewal program and will provide updates as soon as information becomes available.