USA Immigration

U.S. Stateside Renewal Pilot To Kick Off in Jan 2024 

The much-anticipated stateside renewal pilot program is set to run from January 29 to April 1, 2024.  Under the pilot, certain H-1B visa holders will be able to renew their visas within the United States, without having to leave the country for visa stamping.   

The program is limited to a total of 20,000 visa applications.  4,000 application slots will be opened up by the State Department every week, from January 29 through Feb 26.  

While the pilot is currently applicable to H-1B employees only, there is a possibility of it being expanded in the near future to other non-immigrant visa categories like the L-1. 

To qualify under the pilot for domestic visa renewal, the H-1B worker, who has an approved and unexpired H-1B petition and is seeking to renew their visa stamp must: 

  • Have been issued the visa 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; 
  • Not be subject to a nonimmigrant visa issuance fee (“reciprocity fee”);  
  • Be eligible for an in-person interview waiver;  
  • Have been fingerprinted in the past in connection with a prior visa; 
  • Not have a prior visa that includes a “clearance received” annotation;  
  • Not have a visa ineligibility that would require a waiver prior to visa issuance;  
  • Be currently maintaining H-1B status in the United States;  
  • Have a period of authorized admission in H-1B status that has not expired; and 
  • Intend to re-enter the US in H-1B status after a temporary period abroad. 

 Eligible applicants will be able to apply for renewal through the State Department’s dedicated domestic visa renewal website by submitting the DS-160 and paying the requisite fee, after which applications will then be sorted to determine whether they fall within the scope of the pilot. 

Source: 2023-28160.pdf (federalregister.gov)

D&A will closely follow this development and provide updates as and when they become available. 


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


Investor Visa Application Price Increase

US to begin Domestic Visa Renewal for H-1B Workers

In a welcome development, certain H-1B employees will now be able to renew their visa stamp in the United States, without having to apply at a US consulate in their home country or elsewhere.   

The stateside visa renewal pilot program of the US State Department is set to take effect in January, as reported.  This is in a bid to cut down long appointment wait times at US consulates abroad.  Under the pilot program, the grant of H-1B visas will be limited to 20,000 initially.  Details on this are expected to be published in the Federal Register in December that will outline instructions and eligibility criteria, among other things.  

Additionally, the State Department is considering extending “interview waivers” for certain nonimmigrant visa categories.  The Trump administration had authorized consular officers to grant in-person interview waivers for certain visa categories during COVID (such as the L, H-1, O), which authorization was extended several times by the current administration, and is now set to expire in December of this year.   

Reportedly, the Deputy Assistant Secretary for Consular Affairs Julie Stufft, remarked, “The legal authority for renewing the waivers is clear, but it requires concurrence from the Department of Homeland Security. The agencies are having a “robust conversation” on what is and isn’t working at ports of entry…Everyone is very focused on making sure we resolve this issue by the end of the year.” 

A significant number of non immigrant visas including the H-1B and L-1 were issued without an in person interview.  In such cases, candidates submit their applications via the Dropbox process. 

About the H-1B

The H-1B is an employer-sponsored non-immigrant visa classification that allows certain foreign workers to work in the US in a specialty occupation. “Specialty occupation” means a position that requires application of a specialized field of study and one that requires at least a bachelor’s degree as a minimum entry requirement in that specialty.  The H-1B cap or H-1B quota is the numerical limit of H-1B visas allowed in a fiscal year (October 1 to September 30). Currently, the regular cap for H-1B visas (requiring a bachelor’s degree) is set at 65,000.  There is an additional H-1B annual Master’s cap quota set at 20,000 (requiring at least a US master’s or higher degree). 

Source: H-1B Worker Domestic Visa Renewal Pilot to Start in January (1) (bloomberglaw.com)


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


E-2 Visa approved for a Singaporean national during COVID-19

Alert – USCIS will conduct a second H-1B cap lottery for 2024

USCIS will conduct a second H-1B cap lottery for 2024

The USCIS (United States Citizenship and Immigration Services) announced last week that it will conduct a second H-1B cap registration lottery for the 2024 fiscal year. As the agency didn’t receive enough H-1B cap petitions to meet the statutory annual quota of 85,000 for the fiscal year, it is conducting the additional lottery. The initial lottery was conducted in March 2023; the agency had received 758,994 eligible H-1B cap registrations.

USCIS has not specified the number of additional registrations that it will select under the second lottery. Similar to the initial filing requirement, employers can submit the petition on behalf of the selected H-1B candidate during the 90-day period that the agency will designate (in the selection notice).


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


The H-4 EAD as a Work Permit – What you Need to Know

U.S. employers use H-1B visas to employ foreign nationals in the U.S. in certain specialty occupations such as engineers, doctors, architects, software developers and so on. Dependents of an H-1B holder can accompany the H-1B worker to the U.S. on a H-4 visa. Under certain circumstances, spouses on a H-4 visa are permitted to work and often times, the eligible H-4 spouse may already have another employment visa such as the H1B Visa or L-1 and is faced with the question of whether to opt for the H4 work authorization (H-4 EAD) or H-1B Visa or L1 Visa. There is no definitive answer as to which work visa option is better since it depends largely on the individual’s specific circumstances. This article helps understand some of the requirements and nuances of the H4 EAD.

Eligibility and Advantages

An H-4 spouse may be eligible for an H-4 EAD only if: (i) the H–1B worker is the beneficiary of an approved I-140 petition (Immigrant Petition for Alien Worker); or (ii) The H-1B worker has extended H-1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21). Under AC21, H-1B extension can be granted if the H-1B spouse has a labor certification or Form I-140 which is filed at least 365 days prior to the expiration of the sixth year limit of the H-1B, and remains pending (either labor certification or Form I-140 must not have been withdrawn, denied, or revoked).

Also, in order to be eligible for the EAD, the H4 spouse is required to maintain lawful status. Since the H-4 status is tied to the H-1B, it is essential that the H1B worker maintains lawful status as well. To engage in unlawful employment for example would tantamount to a violation of both H-1B as well as H-4 status.

Procedure

Eligible spouses as stated above can file Form I-765 along with requisite and supporting documentation to apply for the H-4 EAD. Processing of the application by the government takes up to 90 days; and the applicant can start working upon receipt of the EAD card. H-4 EAD allows unrestricted employment including self-employment and running one’s own business.

Eligible spouses as stated above can file Form I-765 along with requisite and supporting documentation to apply for the H-4 EAD. Processing of the application by the government takes up to 90 days; and the applicant can start working upon receipt of the EAD card. H-4 EAD allows unrestricted employment including self-employment and running one’s own business.

What are the advantages of an H-4 EAD?

Lower cost: The cost of applying for an H-4 EAD, in comparison with an H-1B is significantly lower. The government filing fee for H-4 EAD (Form I-765) is $410 whereas that for a H-1B is much higher.

No annual cap: Unlike the H-1B visa which comes with an annual quota (H-1B regular cap and H-1B master’s cap of 65,000 and 20,000 respectively), there is no quota or annual cap set for H-4 EADs.

No minimum wage requirement: H-4 EAD does not have a prevailing wage determination as in mandated under the H-1B program.

Unrestricted employment: The H-4 EAD comes with no restrictions on the nature of employment- unlike H-1B where an individual must be employed in certain ‘specialty occupations’ only. Employment on H-4 EAD can be full- time, part-time and the individual can be employed by multiple employers. Also, important to note here is that a H-4 EAD holder can work for an employer as well as run his or her own business.

More flexibility: H-4 EAD allows more flexibility in taking unpaid leave of absence or stopping employment, for example, between projects.

Less documentation: The documentation required in a H-4 EAD application is considerably less voluminous in comparison to what is required in an H-1B or L-1 application.

What are the Disadvantages of an H-4 EAD?

No Portability: Unlike the H-1B which provides portability meaning that an H-1B worker may begin working for a new H-1B employer as soon as the new employer files a petition, the H-4 EAD does not have any such provision. An individual can continue to work in the U.S. while his or her H-1B extension or transfer is pending even after the current H1B has expired as long as the H-1B extension or transfer petition is filed in a timely manner. In the case of H-1B extensions, a pending H-1B allows employment for up to 240 days past the expiration date of the current H-1B term. On the other hand, the H-4 EAD must be valid at all times without any breaks or gaps even if an H-4 EAD extension is pending. This requirement of maintaining continuous validity of H-4 EAD makes it difficult to ensure uninterrupted employment, especially since the H-4 EAD is linked to the spouse’s H-1B.

H-4 EAD tied to H-1B status: An H-1B worker is not dependent on his or her spouse to provide status and work authorization as H-4 spouses are. Therefore, the loss of H-1B status will result in immediate loss of H -4 status of his or her spouse. Hence, any unplanned or sudden termination of employment of H-1B worker may adversely affect employment of the H-4 EAD spouse as well.

Conclusion

Since the EAD is dependent on H-4 status which is tied to the spouse’s H-1B status, in the event that the H-1B spouse loses his or her job and is rendered out of status, there is a consequent loss of H-4 status and of the EAD linked to it. The upside of H-4 EAD is that it offers great employment flexibility- one can work full time, part time or even for multiple employers and most of all, it allows one to set up his or her own business.

While H-4 EAD can be a great option to work, H-1B would be a better employment visa option when one is looking for uninterrupted employment period in certain job positions.

Looking for an US immigration lawyer? Request free consultation at Davies & Associates or find our closest location around the world.


This article has been written by Zeenat Phophalia, Esq. Of Counsel, Davies & Associates, India Office.

Zeenat Phophalia is qualified to practice law in New York, United Kingdom and India. She practices in the area of U.S. immigration law with a focus on business immigration, and has represented corporate clients including large and medium sized companies and startups across sectors such as IT, consulting, consumer goods, manufacturing and telecommunications.

Reference Links

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