Episode 54: The State Department’s domestic visa renewal pilot is here

It’s Dec. 28, and this is your BAL Immigration Report.

• Business and immigration coalitions call for changes to the H-1B lottery.
• Visa Bulletin priority dates jump forward.
• The State Department gears up to begin a domestic visa renewal pilot program for some H-1B holders.

“The launch of the pilot was definitely a huge lift for the State Department as well as some other federal agencies that work closely with the State Department and who are involved in the visa process. This is something that has not been done since 2004 with the exception of diplomatic visas, which are very different than other nonimmigrant visa classifications.”

—Tiffany Derentz, BAL Senior Counsel

U.S. News

Business, immigration coalitions call for changes to H-1B program

Leading business and immigration coalitions have called on the government to make changes to the H-1B program ahead of the upcoming cap season. In October, U.S. Citizenship and Immigration Services published a proposed regulation to modernize the H-1B program, including shifting to a beneficiary-based lottery.

In a Dec. 5 comment, Compete America, a coalition of businesses, trade organizations and higher education associations, said it has serious concerns about vulnerabilities in the current H-1B registration process. Compete America, the American Immigration Council, the American Immigration Lawyers Association, the Information Technology Industry Council and TechNet have all called on USCIS to move forward with immediate changes to the lottery.

USCIS has indicated that it may seek to finalize provisions related to cap registration separately from other parts of the proposed regulation but has not definitively said it will do so.

Visa Bulletin dates advance

The January Visa Bulletin published earlier this month showed significant advancement in priority date cutoffs in several employment-based categories. This means an improved processing timeline for thousands of individuals in the green card backlog, particularly those from China and India.

BAL Partner Josiah Curtis called the movement significant, noting, for example, that the final action date in the first preference category for India jumped forward more than three years to Sept. 1, 2020. Whether this translates to more forward movement through the rest of the fiscal year is difficult to tell.

We asked Curtis for his analysis: “I mean, I would love to be a data scientist at the State Department and sink my teeth into some of this data to really understand what trends will look like in the real world. But as an outside observer who obviously lives in this space and talks with clients about it every day, there are a few factors that could have an impact on the overall green card outlook for the remainder of fiscal year 2024. Largely, it’s hard to identify patterns and trends beyond what you read in the news, but we do know that large numbers of tech workers have been impacted by reductions in force. Many of those folks had previously been sponsored for green cards by their employers. Depending on where and how they were placed in the priority date lines, the possibility that some of those folks may not ultimately be able to complete the green card process where they otherwise would have been able to, which means maybe a few more numbers will be available. Higher level, though, I would say the expectation is really status quo.”

The State Department currently estimates that the government will use about 161,000 employment-based green cards this year. This is more than in a fiscal pre-pandemic year, but fewer than in fiscal years 2021, 2022 and 2023.

“I don’t know that there is any major change in the subscription levels, and I know that the agency is still reallocating some historically unused immigrant visas, meaning that there should be at least some additional green cards available to folks this year. But again, without the data in hand, it’s really hard to say. We’re optimistic that the green card outlook looks good compared to previous years. I just can’t really say with a straight face exactly when and how we expect the Visa Bulletin to move one way or the other.”

U.S. news roundup

• The State Department extended interview waiver authorities for certain nonimmigrant visa applicants.
• USCIS announced it would increase premium processing fees to account for inflation.
• The Department of Labor asked for public input on whether to revise its Schedule A list of shortage occupations, a change that would ease green card processes for some applicants.

Spotlight

Conversation with Tiffany Derentz: The State Department’s plan to let some H-1B holders renew their visas in the United States.

BAL Immigration Report: Last week, the department released long-awaited details of its domestic visa renewal pilot program. The pilot will give up to 20,000 H-1B holders whose current visas were issued within certain time frames by U.S. visa processing posts in Canada and India the chance to renew their visas in the United States. BAL Senior Counsel Tiffany Derentz, who previously served as deputy chief of the Legal Advisory Opinions Division in the State Department’s Visa Office, joined us to discuss the pilot.

Derentz: You can break down the pilot into three core components, the first being just the relevant date, including the application period, when each new tranche of application slots will be open, because they’re not all going to be open at once. The cutoff date for receiving documents and, of course, when it actually closes. The pilot’s only running for a limited time period from Jan. 29 to April 1, and the department’s aiming to adjudicate applications by May 1, when the pilot officially closes.

The second is eligibility criteria. The requirements are very specific, so I think it’s important that applicants really pay close attention to what those requirements are as, if they don’t qualify and they still apply, they’re not going to get a refund for the fees that they pay. And then the third is the application process itself.

In addition, there are some other details in the Federal Register notice that are also important, including the average processing time of six to eight weeks and the fact that expedited processing is not going to be available under the pilot.

BAL: We asked Derentz if anything in the State Department’s notice surprised her.

Derentz: Nothing in the notice really surprised me, but I worked in the Visa Office for nearly a decade, so I’ve seen a number of pilot programs launch and have a general understanding of the various legal and operational considerations the State Department would take into account in preparation for a pilot like this. And because it is a pilot, the department was going to have to find ways to limit the pool of potential applicants. So nothing really stood out to me as being particularly surprising here.

BAL: The State Department has indicated that it may expand the pilot later in 2024.

Derentz: The pilot program has a hard end date on May 1, 2024. After that, the Visa Office will review how the pilot went. They will be looking at things like technical or operational challenges they encountered during the pilot, such as how the application portal, credit card payment, and receipt and delivery of passports and documents functioned. They will also be looking at what works well and where improvements could be made. This may require some adjustments on their side before a longer-term domestic renewal program can begin. But the hope is that the State Department will be able to launch a domestic renewal program sometime in 2024 and that the program will extend to other visa categories, not just H-1Bs. As this would be a new program, we should expect expansion to other visa categories to build up over time. And what I mean by this is that the Visa Office will likely add categories over a period of time as they build up visa processing capacity, which is going to require resources and training.

BAL: Officials announced plans to revive domestic visa renewal in early 2023 and spent months putting the plan together. We asked Derentz what kind of effort this entailed and what kind of obstacles remain for future expansion.

Derentz: The launch of the pilot was definitely a huge lift for the State Department as well as some other federal agencies that work closely with the State Department and who are involved in the visa process. This is something that has not been done since 2004 with the exception of diplomatic visas, which are very different than other nonimmigrant visa classifications.

Not only did they have to build out a team to adjudicate and process these visa renewals domestically, but they also had to create the platform in which to do it. And just to name a few things that people might not really think about: One, a new post had to be created, and this is not something that is done very often and takes some time. I think the last time they opened a new post was Wuhan in China, so it’s been a while. Two, there was no mechanism in place for the Visa Office to receive payments for visa applications, as the diplomatic visas that they renew in the U.S. do not require fees. And three, they had to come up with eligibility criteria and do so in a way that gave them a broad enough applicant pool, while also limiting it just enough to reduce additional technical and operational challenges.

With the launch of the pilot, some of these obstacles will no longer be an issue as they have already laid the groundwork to operationalize the pilot. However, that doesn’t mean it’s an easy lift going forward. If you think about it, each visa classification is unique and the requirements vary. Staff have to be trained to adjudicate each of the different types of visas, and the broader the program, the bigger the workload and more staff that will be required. But overall, this is a huge step in the right direction.

Global news

Ireland expands employment permit system

In Ireland, the government has announced sweeping changes to key immigration programs in what officials called the largest ever expansion to the employment permit system. Eleven roles were added to the critical skills occupation list and 32 were removed from the ineligible occupations list, making them eligible for general employment permits.

Authorities also announced increases to salary requirements for general employment permit holders, which vary based on position and which will go into effect in January. Overall, the changes will make it easier for non-EU or European Economic Area nationals to work in key jobs in Ireland.

Australia announces overhaul of migration system

The Australian government has released a new strategy outlining policy changes to overhaul the current migration system. Net migration into Australia reached a record 510,000 people for 2022-23. Officials intend to reduce these numbers by about half to pre-pandemic levels by June 2025. The majority of these cuts will be achieved by tightening regulations for international students and low-skilled workers. The government does plan to increase migration of high-skilled workers, creating a new specialist visa that expedites processing and provides better prospects for permanent residency.

Global news roundup

• The United Kingdom announced new fees for legalizing public documents.
• Canada announced measures to simplify document authentication procedures.
• The Swiss Federal Council announced that it will soon introduce a new digital visa format.

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