By Jan Pederson
Immigration Update: DOS Launches Domestic Revalidation of a few H-1B Visas on January 29, 2024
In an effort to reduce workloads and eliminate lengthy backlogs to obtain H-1B visa renewals at American consular posts outside the United States, the Department of State announced on December 20, 2023 that it will begin a pilot limited domestic visa revalidation program (DVR) on January 29, 2024. While it is a start, we and our fellow bar association members are disappointed that the program is not longer, more inclusive as to the types of visas accepted and the nationalities of visa holders. Attorneys had requested a return to the prior domestic revalidation program which was in effect for many years and included most types of nonimmigrant visas and not limited by nationality. Indeed, it would seem that a return to the prior program would benefit the Department of State in the tremendous cost savings of adjudications in Washington, DC and it is a tremendous benefit to visa applicants.
It is expected to benefit the eligible H-1B visa holders and their employers by allowing the H-1B visa holders to obtain renewal H-1B visa while waiting in the United States, eliminating the frightening uncertainties of leaving the United States, not knowing when and whether the H-1B worker will return. We have heard of instances where Indian H-1B visa holders who have worked for a decade or more in the United States departed from the United States for travel home for family emergencies or visits, and denied visas to return for reasons not disclosed to them. This is widely considered a step in the right direction which should be expanded to include most non-immigrant visas. In an era where consular officers abroad are reduced to adjudication by Watch Lists, compiled by multiple U.S. government agencies and the same information is available to officers adjudicating the visas in the United States in the consular data base, there is little, if any, security risk involved.
The program does not include DVR for H-4 visa holders, the spouses and unmarried children of H-1B visa holders.
- Eligibility for participation in the Pilot DVR program:
- Participation is voluntary and limited to H-1B visa applicants who:
- Seek to renew an H-1B visa between January 29, 2024 and April 1, 2024;
- Are renewing a previously issued H-1B visa issued either by a consular post in Canada where the last visa was issued between January 1, 2020 and April 1, 2023; or by a consular post in India between February 1, 2021 through September 30, 2021; and
- Are not required to pay a visa reciprocity fee (Indian passport holders are not required to pay reciprocity fees);
- Are eligible for an in-person interview waiver; and
- Have had fingerprints (ten prints) taken in connection with a prior visa application; and
- Do not have an annotation on a prior visa “clearance received”; and
- Do not have a prior ineligibility which requires a nonimmigrant visa waiver (such as findings of misrepresentation, fraud, criminal convictions; unlawful presence; and suspicion of being involved in money laundering, drug trafficking); and
- Last admission to the United States was in H-1B status; and
- Have a valid, unexpired H-1B petition; and
- Is maintaining H-1B status; and
- Intends to re-enter the United States in H-1B status after a temporary visit abroad to work for employer listed on the current H-1B approval notice.
- Participation is voluntary and limited to H-1B visa applicants who:
For H-1B visa applicants who meet the requirements above, application for a renewal of an H-1B visa can be made online beginning on January 24, 2024 at Travel.State.Gov. Each week, DOS will release approximately 2,000 application slots for those whose most recent H-1B visa was issued by Mission Canada and approximately 2,000 application slots for those whose most recent H-1B visa was issued by Mission India.
The dates of release will be as follows:
- January 29, 2024
- February 5, 2024
- February 12, 2024
- February 19, 2024
- February 26, 2024
Once the weekly limits are reached for each mission the online application portal will be locked until the next date makes the next group available. The application process will close when all slots are filled, or on April 1, 2024, whichever is sooner.
Thus, it is advisable to have all documents in advance and ready submit a nanosecond after midnight on January 29, 2024. It is expected that the demand will far exceed supply and, as indicated, the system will lock when the limit of 2000 applications have been received for the opening dates listed above. An online qualifying application to determine eligibility for the program must be filed. If found eligible through the dedicated website, H-1B workers will need to complete and submit the DS-160 at the Consular Electronic Application Center and pay the MRV online with a United States issued debit or credit card. The online portal will then provide instructions on how to send passports to the Visa Office.
DOS warns applicants that even though the online portal may find them eligible for the DVR process, the DOS reserves the right to refuse to revalidate the visa and applicants so refused will not receive a refund.
- A filed (submitted) DS-160, Online Nonimmigrant Visa Application. Note you may use a previously created DS-160 and go to tab which states “Create a New Application”. The majority of the fields will be populated and the applicant will just need to revise the form. Always print out and keep a hard copy and electronic copy of the DS160.
- One photograph (taken within the last six months), which meets these specifications.
- A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains a blank, unmarked page for placement of a visa foil.
- An original or copy of the applicant’s current Form I-797, Notice of Action. Note: Original I-797s are not required.
- An original or copy of the applicant’s I-94 Arrival-Departure Record.
Evidence of U.S. residency or international travel plans are not required in the initial application filing, although it may be requested by DOS at a later date. However, we suggest that such be submitted to avoid an RFE.
Applications will be considered in the order they are received. No status on the application will be provided other than returning of the application, or issuance or refusal of the visa.
NOTE: The status of an application may be reviewed via CEAC.
Once received, applications and passports will be assessed to determine if they are within the scope of the pilot program. Applications not in the scope of the program will be returned along with the passport. MRV fees will not be returned. Those that are within the scope will be forwarded for adjudication.
NOTE: If an application is adjudicated but does not satisfy the scope of the pilot for any reason, it will result in a refusal under INA 221(g). The applicant may reapply by filing a new visa application at a consular post abroad with a new fee. It is critical to consult with an attorney before traveling abroad to apply for an H-1B renewal if DOS denies to adjudicate the application under the DVR program.
According to DOS, the average processing time is expected to be 6-8 weeks from the time the passport and documents are received by DOS, and the agency intends to complete processing of all applications by no later than May 1, 2024.
No requests for expedited processing will be accepted. If an applicant applies for domestic visa renewal and requires urgent travel, they may withdraw their application and request through the online portal that their passport be returned to them. If the applicant withdraws their application during the adjudication process, it will be refused under 221(g).
Issued visas, passports, and documents submitted will be returned to the applicant via USPS or a courier service. The agency reminds applicants that visa issuance is NOT a grant of nonimmigrant status and does not constitute an extension of nonimmigrant visa status or an admission to the United States. A visa only permits an applicant to seek admission at a U.S. port of entry after overseas travel. In other words, the H-1B stamp does not permit the applicant to remain in the United States during its validity. Rather, the applicant must continue to maintain valid I-94 status as noted on the I-94 or the bottom portion of the I-797 containing the I-94. During the prior DVR program, many applicants believed the visa stamp was a period of authorized stay. Do not make this consequential error.
DOS will return without adjudication any application that is not within the scope of the pilot program. DOS will not refund the MRV fee in these situations.
An H-1B renewal application may be accepted for adjudication but subsequently found to be ineligible for visa issuance under INA 221(g). If such a “soft refusal” is entered, the H-1B worker may still apply for a visa abroad, but caution should be taken and an attorney consulted before applying for a visa abroad in all cases, and especially if a DVR is refused.
It is critical that the forms are completed completely and correctly and all required documents submitted. Failure to do so will result in either an RFE or INA 221g refusal.
This is a small step forward in the needed giant leap to implement DVR for most NIV categories and certainly for dependents. Our readers are encouraged to contact their Senators and Congresspersons to request that the DVR program be expanded and made permanent.
Our attorneys are available for consultations on this and other immigration matters. Contact Corey at firstname.lastname@example.org for a consultation with Jan Pederson.
Happy Holidays and may the New Year bring a permanent, expanded DVR program!