A new regulation from the U.S. Department of State (DOS) will raise key visa processing fees, effective May 30, 2023. For example, the Machine Readable Visa (MRV) fee for F-1, J-1, and other non-petition-based visas rises 15.6 percent, from $160 to $185, and the MRV fee for petition-based categories, such as H-1B and O visas, rises 7.9 percent, from $190 to $$205. The final rule, published on March 28, 2023, raised most visa and border crossing card fees, but not as much as in the proposed rule, and the rule does maintain the current INA 212(e) 2-year home residence waiver application fee at $120.
Bloomberg News Reports State Department Plans Pilot for Domestic Visa Renewal
Bloomberg News reported on February 9, 2023, that the U.S. State Department will launch a pilot program later this year offering visa renewal options in the US for H-1B specialty occupation workers and other temporary visa holders who are currently required to travel abroad.
Reestablishing the practice of stateside visa renewals, which were discontinued in 2004, will save those applicants from having to leave the country, and will reduce the workload of consular offices abroad, Julie Stufft, deputy assistant secretary for visa services in the Bureau of Consular Affairs, told Bloomberg Law in an interview.
A stateside renewal process would be immensely beneficial for beneficiaries impacted by numerous consular closures and months-long wait times for visa interviews.
U.S. Mission to China Temporarily Suspends Visa Services Due to COVID-19 Surge
The U.S. Mission China announced on December 15, 2022, that due to operational impacts caused by the surge of COVID-19 infections across China, all routine visa services at the U.S. embassy and consulates in China are temporarily suspended.
Specifically:
U.S. Embassy Beijing and U.S. Consulate General Shanghai are providing passport and emergency citizen services only.
U.S. Consulates General Wuhan, Shenyang, and Guangzhou will only be providing emergency consular services until further notice.
The announcement stated that some visa appointments previously scheduled at U.S. Consulate General Shanghai will be preserved, but all other nonimmigrant visa and immigrant visa appointments at the embassy and consulates in China have been canceled. Applicants will be contacted if their visa appointment is impacted.
Per Mission China, they are advising nonimmigrant visa applicants to reschedule their appointments for a later date by following the instructions at https://www.ustraveldocs.com/cn/cn-niv-visaapply.asp. Immigrant visa applicants with questions are advised to contact the IV unit through its online form found here: https://china.usembassy-china.org.cn/visas/immigrant-visas/immigrant-visa-unit-question/.
There is no indication of when visa services will resume.
H1B Cap Reached for FY 2023: Alternatives for Specialty Workers
H-1B Cap Reached for FY 2023
On August 23, 2022, U.S. Citizenship & Immigration Services announced that it had received enough petitions to meet the congressionally mandated annual 65,000 regular H1B cap and the 20,000 master’s H1B cap for fiscal year 2023. Therefore, because the annual quota of 85,000 total visas has been met for the next fiscal year, USCIS will not conduct additional lotteries.
USCIS has sent non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H1B numerical allocations, but that were not selected, will now indicate “Not Selected.” The registration for FY24 will open in March 2024 for the fiscal year beginning on October 1, 2024.
Not Selected in the H-1B Lottery? Consider These Alternatives, Especially for STEM Foreign Graduates.
If you were not selected in the annual H1B lottery, there may be other options to keep talented foreign workers contributing in the U.S. Wondering if the options below might be a fit for you? Call us to discuss the requirements and processing times in more detail.
Pursue PERM/labor certification. So long as the employee is not a national of India or China, employers should consider pursuing the recruitment-based, 3-step green card process which begins with a labor certification.
Under current processing times, the sponsored employee may be able to file for adjustment of status and interim employment authorization for themselves and eligible family members within 12 months.
For those eligible for STEM OPT and not subject to retrogression, the timeline may allow for employment authorization before the end of STEM OPT.
This is a great job market for STEM graduates making it a great time for the labor certification process.
Pursue a National Interest Waiver (NIW).
The Biden Administration has made it a priority to keep STEM foreign graduates in the United States and, thus, if the employee’s research or work is in the national interest, this is a terrific option.
For those eligible for STEM OPT and not subject to retrogression, the ability to concurrently file an NIW Immigrant Petition and applications to adjust status may allow for employment authorization before the end of STEM OPT.
Pursue a nonimmigrant Extraordinary Ability O1 Petition.
This is an option for qualifying noncitizens, including those from India or China, if they can satisfy at least 3 of the regulatory criteria, such as
publication of scholarly articles, preferably first-author and in high-impact journals;
service as a judge of the work of others (e.g., manuscript/abstract review);
original contributions of major significance in the field, as validated by experts; or
nationally or internationally recognized awards or honors.
There is no prevailing wage requirement.
The O1A Petition can be adjudicated within 15 days via premium processing!
Pursue a Treaty Visa. Nationals of the following countries may be eligible for employment visas that are not subject to a cap for certain occupations:
Canada/Mexico: USMCA (TN) classification
Chile/Singapore: H1B1 Specialty Workers
Australia: E3 Specialty Workers
Consider industry-academic partnerships with an institution of higher education to pursue cap-exempt H1B. Employees who work at least part-time for a cap exempt H1B employer (e.g., institution of higher education, affiliated non-profit, etc.) can have an otherwise cap subject employer pursue a concurrent H1B on their behalf for the same duration as their cap exempt H1B employment.
Every situation is unique and multiple factors can influence eligibility for classifications. If you have missed out on selection in the FY2023 H1B Lottery, consider whether another path may be available.
DHS Issues Temporary Exception to COVID Requirements for Nonimmigrants Traveling from Ukraine
Effective February 15, 2022 through 11:59 pm ET March 1, 2022, the Department of Homeland Security has authorized the grant of National Interest Exceptions (NIEs) to Presidential Proclamation 10294, barring U.S. entry by nonimmigrants who are not fully vaccinated, for nonimmigrants traveling from Ukraine to accompany U.S. citizens or lawful permanent residents.
The grant comes in light of the Department of State’s February 12, 2022 Level 4 Travel Advisory recommending that individuals in Ukraine depart immediately due to the escalating geopolitical tensions: “Given the rapidly deteriorating security situation in Ukraine, and the need to ensure that individuals traveling with U.S. citizens and lawful permanent residents can safely depart the country,” Secretary Mayorkas “determined that a temporary exception” for certain nonimmigrants is warranted by the national interest.
To qualify, the noncitizen nonimmigrant must:
be traveling with a U.S. citizen or lawful permanent resident;
have been physically present in Ukraine as of February 10, 2022; and
possess valid travel documents allowing them to travel to the U.S.
Nonimmigrants granted entry under these provisions must:
attest to having made arrangements to receive a COVID-19 test within three to five days of arrival in the U.S.;
self-quarantine for seven days;
self-isolate in the event of a positive COVID-19 test or the development of COVID-19 symptoms; and
become fully vaccinated for COVID-19 within 60 days of arrival in the U.S., if intending to stay more than 60 days.
Nonimmigrant Visa Interview Waiver Authorization Expanded and Extended
On December 23, 2021, the Secretary of State extended through the end of 2022 existing policy guidance for visa interview waivers for certain nonimmigrant visa (NIV) applicants (with minor modifications) and expanded the authorization to include additional categories of NIV applicants, as follows:
Categories NEWLY eligible for discretionary Visa Interview Waiver consideration (H-1, H-3, H-4, L, O, P, and Q):
Consular officers were given the discretionary authority to waive the visa interview requirement for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa and:
who have never been refused a visa unless such refusal was overcome/waived; and
who have no apparent ineligibility or potential ineligibility.
Consular officers also have the discretion to waive the visa interview requirement for first- time individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who:
are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided:
they have no apparent ineligibility or potential ineligibility; and
have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).
Categories with EXTENDED eligibility for discretionary Visa Interview Waiver consideration (F, M, J (academic) and H-2) through the end of 2022:
Previously approved policies authorizing consular officers to waive the visa interview requirement for F, M, academic J, and H-2 visa applicants have been extended (with minor modifications). The current policies for F, M, and academic J visa applicants are as follows:
Consular officers have the discretion to waive the visa interview requirement for F, M, and academic J Visa applicants who:
were previously issued any type of visa and:
who have never been refused a visa, unless that refusal was subsequently overcome or a waiver of ineligibility was obtained; and
for whom there is no indication of potential visa misuse or ineligibility;
or
are first-time F, M, and academic J visa applicants who/whose:
are citizens or nationals of Visa Waiver Program (VWP) participating countries;
have no prior ESTA denials;
have previously traveled to the United States using an authorization obtained via ESTA to qualify;
visa applications reveal no derogatory or potentially derogatory information; and
have no indication of potential visa misuse or ineligibility.
Certain H-2 (temporary agricultural and non-agricultural workers) applicants also remain eligible through the end of 2022 under previous authority allowing for waiver of interviews, as do applicants renewing any visa within 48 months of expiration.
How to Apply for an Interview Waiver:
As these waivers are to be granted individually at the discretion of local DOS consular officers, applicants are advised to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview.