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    4. Department of State to resume stateside renewal of certain H-1B visas

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    Article

    Department of State to resume stateside renewal of certain H-1B visas

    Dec 28, 2023

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    By Jason Gerrol

    Beginning January 29, 2024, DOS will begin allowing certain H-1B visa holders to renew expired or expiring H-1B visas from within the U.S.

    Beginning January 29, 2024, the Department of State (DOS) will allow certain H-1B visa holders to renew their expired or expiring H-1B visas from within the U.S., rather than needing to travel to a U.S. consulate or embassy abroad, as has been the case since 2004 when DOS discontinued domestic renewal of non-diplomatic nonimmigrant visas.

    This is a pilot program limited to 20,000 H-1B visa renewals and will apply only to principal H-1B visa applicants whose H-1B visa was previously issued by Mission Canada or Mission India, among other requirements outlined below. The pilot program will not extend to H-4 dependent family members, who must still travel abroad to renew their H-4 visa. Participation in the pilot program is voluntary, and applicants should review the requirements and processing times carefully before participating.

    What are the pilot program requirements?

    Participation in the pilot program will be limited to applicants who:

    • Are renewing an H-1B visa during the pilot phase; no other visa classifications are eligible for the pilot program;
    • Have an H-1B visa issued by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023, or by Mission India with an issuance date of February 1, 2021, through September 30, 2021;
    • Are not subject to a nonimmigrant visa issuance fee, also known as a reciprocity fee;
    • Are eligible for a waiver of the in-person interview requirement;
    • Have previously submitted ten fingerprints to DOS in connection with a previous visa application;
    • Have a prior visa that does not include a “clearance received” annotation;
    • Are not subject to a visa ineligibility that would require a waiver prior to visa issuance;
    • Have an approved and unexpired H-1B petition (I-797);
    • Were most recently admitted to the U.S. in H-1B status;
    • Are currently maintaining H-1B status in the U.S.;
    • The period of authorized admission in H-1B status has not expired; and
    • Intend to reenter the U.S. in H-1B status after temporary travel abroad.

    When can I apply for the pilot program?

    DOS will begin accepting online applications on January 29, 2024. In order to control the number of applications received, each week, DOS will release approximately 2,000 application slots for applicants whose most recent H-1B was issued by Mission Canada and approximately 2,000 for applicants whose most recent H-1B visa was issued by Mission India. In other words, the DOS will release approximately 4,000 application slots each week on January 29, February 5, February 12, February 19, and February 26, 2024.

    Once the weekly limit is reached, the online portal will lock, and applicants unable to apply may attempt to apply on one of the remaining application dates. The application period for the pilot program will close when all application slots are filled or on April 1, 2024, whichever comes first.

    What is the pilot program process, and how long will it take to process my visa renewal?

    The pilot program application process requires the following:

    • Completion of a self-assessment of eligibility for the pilot program (Importantly, the self-assessment is not capable of screening out all unqualified applicants.);
    • Completion of the Form DS-160; and
    • Payment of the $205 non-refundable machine-readable visa (MRV) fee.

    After submission of the DS-160 and payment of the MRV fee, applicants will receive instructions for sending required documents, including passport, original or a copy of the applicant’s H-1B approval notice (I-797), and original or copy of the applicant’s Form I-94.

    DOS expects an average processing time of six to eight weeks from the time the passport and other required documents are received and will not accept requests to expedite processing. The issued visa, passport, and other documents submitted by the applicant will be returned via either the U.S. Postal Service or a commercial courier.

    If an applicant submits an application and subsequently needs their passport returned prior to adjudication due to urgent travel needs, for example, the applicant may withdraw their application and request the return of their passport. However, withdrawal of an application will be considered a visa refusal under section 221(g) of the Immigration and Nationality Act (INA), and the MRV fee will not be refunded.

    Importantly, the issuance of a visa under the pilot program is not a grant of non-immigrant status or an extension of current nonimmigrant status, which can only be granted by filing the necessary petition with U.S. Citizenship and Immigration Services.

    Can my pilot program application be refused?

    Yes. As mentioned, the pilot program self-assessment does not screen out all unqualified applicants, meaning some unqualified applicants may ultimately submit an application that will be refused.

    An applicant may subsequently be found ineligible for a waiver of the in-person interview requirement, and some applicants may not be fully aware of the facts that caused them to be ineligible for the in-person interview waiver or otherwise fail to meet the requirements for the pilot program. In other cases, DOS may refuse an application but provide instructions for submitting additional documents or information.

    Refusal of a pilot program application will be considered a visa refusal under INA 221(g), and the MRV fee will not be refunded. A visa refusal under INA 221(g), even if the visa is ultimately issued after submitting additional documents/information, may impact an applicant’s ability to travel to the U.S. under the Visa Waiver Program (if applicable) in the future and would have to be disclosed in future applications for immigration benefits.

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    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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