Immigration
VISA RENEWALS, EADs, H-1B
By Dilip Patel
I am pleased to submit this article for the Diwali and India Festival issue and wish everyone a very Happy Diwali. This month, I provide an update on three items of interest relevant to our readers.
Visa renewals by mail within USA
Currently, only U.S. consulates abroad are able to issue visas to noncitizens who want to travel to the USA. This was not always the case. Prior to 2004, holders of E, H, L and P visas maintaining status in the U.S. were able to renew their visas by mailing the applications to the U.S. Department of State in Washington, D.C. – a process referred to as “stateside processing of visa renewals.” Stateside processing ended in 2004, primarily because of increased security requirements and the lack of capacity to process fingerprint checks. As a result of the global COVID-19 pandemic and other conditions, visa processing at consulates abroad experienced significant problems and delays. Many organizations suggested the reintroduction of stateside visa renewals as a way of addressing some of the delays by reducing the number of applicants at the consulate.
In early 2003, there were reports from the State Department that they were planning to reintroduce stateside visa processing. This created a lot of excitement – especially among Indian citizens with H or L status in the U.S. The excitement waned because there appeared to be no progress in sight. Finally, on Oct. 17, 2023, the Department of State sent to the Office of Information and Regulatory Affairs, a draft for a notice entitled, “Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens.” The actual document is not yet available to the public, so full details are not available. The information currently available indicates that the program will not begin until early 2024. DOS officials have indicated that it will initially be limited only to 20,000 H-1B principals who would be otherwise eligible for the interview waiver process at their home consulate. Citizens of India will be eligible to participate in the pilot program. DOS has expressed its strong intent to expand this program after the initial launch has allowed them to work out any operational issues. Something to look forward to in 2024.
Automatic extension for EADs reduced to 180 days
Some foreign nationals are eligible to apply for and receive employment authorization from USCIS, evidenced by an Employment Authorization Document (EAD). Each EAD contains a code reflecting the provision of law under which it was issued. Some common examples of persons eligible to apply for and receive the EAD are applications for Adjustment of Status (code (c)(9)); H-4 Spouses of H-1B with approved I-140 petitions (code (c)(26); TPS (a)(9); Asylum Pending (c)(8); and, Asylum approved (a)(5).
Each EAD is issued with an expiration date and the holder would have to apply for an extension or renewal if still eligible. The renewal application can be filed 120 days in advance of the expiration date. A frequently encountered problem was that USCIS was slow in processing and issuing the renewed EAD causing the employment authorization to expire until the new card was issued. Normally, for eligible EAD renewals, DHS regulations provided for an automatic extension period of up to 180 days from the expiration date stated on the EAD. However, USCIS processing times began to exceed 180 days; so, in May 2022, USCIS published a temporary rule, which provided for the automatic extension to be 540 days from the expiration date stated on the card. That temporary rule expired on Oct. 26, 2023, and going forward, for applications filed after that date, the automatic extension is reset to 180 days.
On the good news front, on Sept. 27, 2023, USCIS announced that the validity period for EAD’s issued to asylees and refugees, noncitizens granted withholding of deportation or removal, noncitizens with pending applications for asylum or withholding of removal, and noncitizens with pending applications for adjustment of status would be increased from the maximum of two years to five years. We have now started to receive C9 EAD’s valid for five years. Hopefully, this will significantly reduce the number of applicants who need to file renewals.
USCIS proposed rule to amend H-1B regulations.
On Oct. 20, 2023, DHS announced the publication of a proposed rule to modernize the H-1B program. Public comments would be accepted until Dec. 22, 2023. One highlight of the proposal is to change the selection process for the H-1B lottery. Instead of selecting by registration, USCIS would select by unique beneficiary, thereby reducing the potential for gaming the process to increase chances for selection and helping ensure that each beneficiary would have the same chance of being selected, regardless of how many registrations are submitted on their behalf. For example, in March 2023, there were 483,927 registrations, but of those, 176,444 were for individuals registered by more than one prospective employer. One individual actually had 83 employers submit registrations for them. The proposed rule would allow each beneficiary to be selected only once; if a beneficiary holds multiple registrations, each registering company would be notified of selection and provided an opportunity to file a legitimate H-1B petition on the beneficiary’s behalf. The proposed rule will also enhance penalties for those who abuse the lottery system. We will provide more details once the rule is finalized and implemented.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]