Search
Contact
Login
Share this article
In this week’s extended episode, special guest Stuart Anderson joins the BAL Immigration Report to discuss this year’s key developments in immigration policy–from H-1B denial rates and O-1 visa guidance to humanitarian parole programs and immigration rhetoric during the election.
Stuart Anderson is the executive director of the National Foundation for American Policy, a nonpartisan public policy research organization focusing on trade, immigration and related issues, and a senior contributor to Forbes. He joined the BAL Immigration Report to discuss key developments in immigration policy and events in 2024 with BAL partner Edward Rios.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL immigration news page.
This podcast has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
With the 2024 election behind us and the inauguration set for January 20, 2025, now is the time for employers to take stock of their talent strategy and communications protocols to prepare for a second Trump administration.
We are entering a challenging environment for immigration policy. Based on the experience of the first Trump administration, employers should anticipate rapid and dramatic changes from the past four years. The good news is that we know more today than we did during the transition to the first Trump administration, and those learnings can inform the way employers organize their global talent programs and communicate with their foreign national employees.
Many of the individuals joining the second Trump administration bring with them the experience of his first term. They have a deeper understanding of the levers of government and how to use them. We know that they are using the time leading up to the inauguration to firm up immigration plans, draft policies and prepare new regulations so they can hit the ground running on Day 1.
At the end of Trump’s first term, the change in administrations allowed the Biden team to slow-walk and reverse many of Trump’s immigration policies. This is something the incoming administration is aware of and will want to use to their advantage. While we cannot say for certain exactly what those changes will be, the incoming Trump administration has made it clear that its overall approach is to restrict the number of immigrants entering the United States and to remove undocumented immigrants in large numbers. It’s important to recognize that under the anticipated enforcement priorities, there are no categories of undocumented immigrants who are considered safe from removal proceedings.
We also know from the experience of the first Trump administration that policy changes, travel bans and other business-disrupting events were often communicated via social media posts or press releases late on Fridays. Employers should be prepared to act quickly — often over weekends or holidays — to accommodate these changes, as they often went into effect on the following Monday.
While we have the experience of managing global talent under a Trump administration, it’s important to recognize some of the ways the world has changed since the first term.
If we think of public sentiment towards immigration as a pendulum, there is a center point that reflects prevailing feelings about how we approach immigration as a country. Each political party pushes the legal pendulum as far as they can in the direction they believe is most beneficial for the country. With this election, that center point has moved further to the right. The Republican party ran hard on immigration issues and was rewarded with not only the Presidency, but control of both houses of Congress. We should expect that these wins will embolden dramatic changes in the immigration landscape in a way that the 2016 election did not.
Additionally, under the first Trump administration, the U.S. Citizenship and Immigration Services (USCIS) was nearly bankrupt. Because USCIS funding comes primarily from filing fees and not tax dollars, the decline in global immigration during the pandemic resulted in severe budget shortfalls. At one time, the agency planned to furlough workers in an effort to save money. The second Trump administration’s stated focus on “government efficiency” combined with plans to curtail legal immigration could result in a similar underfunding, which in turn would slow the pace of processing for those in the immigration system.
Based on actions taken in the first administration, there are three main areas that the Trump administration is likely to prioritize that would impact corporate immigration programs: travel bans, business policy changes and worksite enforcement.
Shortly after taking office in January 2017, Trump signed an executive order, commonly referred to as the “Muslim Ban,” that prevented nationals from several countries from obtaining visas and traveling to the U.S. While these actions quickly led to legal challenges, the incoming administration now has legal precedent to rely on when creating new executive orders that will withstand scrutiny by the courts.
New travel bans are expected as soon as Day 1 of the second Trump administration. While there may be limited exceptions or waivers for some groups of people, it’s too early to know exactly what form these bans will take. Based on statements from members of the incoming administration, there are three additional categories of people who should give additional thought to whether they should be outside of the U.S. at the time of the inauguration: Chinese nationals, H and L travelers and F-1 students.
Historically, travel bans go into effect 72 hours after they are announced, so while there is a small window, it may not be sufficient for those outside of the U.S. to return before a ban goes into effect. Individuals who could be affected by travel bans should consider returning to the U.S. prior to the inauguration.
Other policy changes, however, can go into effect immediately, with no warning. Business policies can be used to slow the rate of processing, which has a net effect of reducing overall immigration — a goal of the new administration. Petitioners should expect to see more Requests for Evidence (RFEs), increased denial rates and revocation of Biden-era guidance that was intended to make the process work more smoothly.
For example, Biden reinstituted the pre-Trump policy of deference to prior determinations when considering renewal requests. For applicants requesting extensions where there were no material changes in facts since the previously approved petition, USCIS generally deferred to the previous decision and granted extensions. If the deference policy is not codified before Trump takes office, employers and petitioners should expect that Trump will revert to the policy of his first administration, reviewing every application as though it was the applicant’s first. The additional administrative burden will slow the application review process, so renewals that can be expedited now, should be.
Like executive orders, regulatory changes can take more time to come into effect. The first Trump administration moved to prioritize H-1B lottery selection by wage and increase salary thresholds by an average of 40% to discourage the hiring of foreign nationals. While they published final versions of these rules, the incoming Biden administration delayed them before they went into effect. The Trump administration would likely be interested in implementing similar policy changes, and they know from previous experience that administrations can run out of time to effect change. While there would be a very tight timeline to implement salary requirements between the inauguration and the H-1B registration period in 2025, employers should expect to see the incoming administration signaling the direction it intends to take on these issues early on.
Finally, employers should expect to see an increase in worksite visits, similar to the uptick we saw in the first Trump administration. There are two different groups that employers may see: USCIS and U.S. Immigration and Customs Enforcement (ICE).
First, the Fraud Detection and National Security (FDNS) division of USCIS conducts site visits under the Administrative Site Visit and Verification Program (ASVVP), either via e-mail or phone or at the addresses listed on a petition. Since these could be either employer-owned locations or in the case of remote workers, the beneficiary’s residence, employers should consider reviewing the petitions of their foreign national employees on H and L visas and ensuring that anyone working remotely knows who to call in the event that FDNS reaches out or appears in-person at their homes.
Second, ICE conducts Form I-9 audits. Whether employers collect and store Form I-9 on paper or electronically, every worksite should know who to contact internally when ICE arrives and be prepared to produce the requested documentation. The Trump team has also expressed an intent to resume conducting unannounced worksite raids, and to expedite removal proceedings for undocumented workers identified, though how that process will work is not yet clear.
While we may not know the specifics of how the immigration landscape will change, we do know that change is coming and that employers need to be prepared to react quickly and communicate rapidly to affected workers.
Coordinate internally on company priorities
Leadership will need to determine and communicate the organization’s position in a new political environment, and organizations will likely pursue a different playbook than they did during Trump’s first term. Employers may want to form working groups that include public affairs, HR, communications, key business groups and legal.
Create a plan for January 20
Corporate travel policies should be updated and communicated — either directly by the company or through their law firm — prior to the inauguration to account for employees who cannot enter the United States. COVID travel policies can provide a good framework, as travel guidance shifted constantly and employers had to provide proactive and reactive guidance on short notice. Employers should also determine now whether they have the resources to aid employees who are unable to reenter the U.S. If not, employees who need to travel outside of the U.S. should be encouraged to return prior to January 20.
Establish an internal communications process and platform
Knowing that policies can change quickly and outside of standard business hours, it’s imperative to establish a method for keeping employees informed during the transition. One key area to address is how communications will be developed, reviewed and approved, knowing that major changes may be announced on Fridays and holidays. Our firm has developed a proprietary communications tool that allows our government strategies team to immediately push out updates to clients.
Develop a defensive strategy for worksite enforcement visits
Set up an internal rapid response team and ensure that front desk and security personnel know who to call in the event that agents or inspectors arrive on-site. Generally, in the event of an ICE audit, employers have 72 hours to respond with I-9s, which could reside with HR or a third-party. The internal rapid response team should know the process for assembling requested documents.
Revisit your talent strategy to prepare for a new administration
Under previous administrations, a company’s talent strategy could remain fairly stable over four or even eight years. However, knowing that the incoming administration is looking to move quickly and dramatically, it may make sense to regroup quarterly to adjust to changing policies and regulations.
In anticipation of a more restrictive immigration policy environment, now is the time to organize internally to determine how your organization will respond and communicate those changes to employees.
This article was originally published on Law360.com.
Looking forward, the European Union is currently in the process of implementing two separate but interconnected systems that will soon have a tremendous impact on non-EU citizens traveling to most EU countries. Meanwhile, the United Kingdom is expanding its worldwide rollout of its new electronic travel authorization (ETA) system that will have a major impact on travel and transit through the U.K. in 2025 and beyond.
Presently, countries like the United States and Canada have similar ETA systems already in place that act as a digital permit for certain individuals to travel to or transit through these countries. These existing digital infrastructures collect traveler data, assess risk and grant entry via a digital process, specifically allowing eligible foreign travelers to enter without a visa. Across the world, similar programs are either in place currently or being introduced to allow more countries the ability to screen travelers before they arrive and increase visibility and security.
ETAs represent a modern approach to border control and visa management that is transforming the world’s travel experience. More and more countries are installing ETA systems to simplify the application process and increase security. In recent years, the ETA has become a vital digital process for international travelers.
Here is a look at the essential features and functions of ETAs through a breakdown of the major travel registration systems currently in place and those set to be released in the future — and, more importantly, what your company can do to prepare.
One of the most well-known ETA systems is the Electronic System for Travel Authorization (ESTA) online service in the United States for those who wish to travel under the Visa Waiver Program (VWP). These travelers must apply for authorization via an automated system that determines VWP eligibility for U.S. inbound travel. Authorization via ESTA does not determine whether a traveler is admissible; rather, U.S. Customs and Border Protection officials determine admissibility upon travelers’ arrival. The ESTA application collects biographic information and asks questions regarding VWP eligibility. Travelers are encouraged to apply as soon as they begin preparing travel plans or prior to purchasing airline tickets.
Canada’s electronic travel authorization (eTA) is required for visa-exempt foreign nationals traveling by air and is valid for up to five years or until the passport expires, whichever comes first. American citizens, including American Canadian citizens, do not need an eTA to enter Canada. These individuals still must carry proper identification and meet the basic requirements to enter Canada. Authorities launched the eTA system in 2016 for visa-exempt air travelers, and it is electronically linked to a traveler’s passport. With a valid eTA, eligible foreign nationals can travel to Canada as often as desired for short stays — up to six months at a time. Four types of travelers need an eTA to enter Canada, and applicants can apply for an eTA on the official Government of Canada website.
Australia was one of the first countries to implement an ETA system with the Subclass 601, Electronic Travel Authority that allows eligible foreign nationals to visit Australia as often as desired in a 12-month period with stays of up to three months each time. Different from the U.S. and Canada, this system is not meant for visa-free nationals — who can still enter Australia with just their passport for tourism/business — but rather for those nationals who require a visa (e.g., Indian nationals). With this visa, individuals can visit as a tourist or arrive as a business visitor. This visa is temporary and does not require a fee; however, there is an application service fee of AU$20 (about US$13) to use the Australian ETA app. Individuals must be outside of Australia when they apply for the ETA and outside of Australia when the visa is granted.
Introduced in 2019, the New Zealand Electronic Travel Authority (NZeTA) is for visitors from visa-waiver countries (including Korean nationals) traveling to or transiting through New Zealand. Individuals can apply online through the official Immigration New Zealand (INZ) website or mobile app. Applicants need to provide a passport number, nationality and reference number. The NZeTA costs NZ$9 (about US$5) when requested through the INZ mobile app and NZ$12 (about US$7) when requested through the website form. It is valid for up to two years and can be used for multiple visits within that time frame.
The South Korean government implemented the Korea Electronic Travel Authorization (K-ETA) on Sept. 1, 2021. Nationals of countries who are eligible for visa-free entry need to obtain K-ETA approval in advance to board flights or ships bound for the Republic of Korea.
The government currently exempts certain travelers from 67 visa-exempt countries from the K-ETA requirement but this exemption is due to expire on Dec. 31, 2024. Unless the South Korean government announces otherwise, the K-ETA requirement will be reintroduced as of Jan. 1, 2025, and travelers who plan to enter after this date must have an approved K-ETA authorization.
These new electronic travel registration systems are still in the process of being finalized, and plans and details on how each system will function may change.
The Entry/Exit System (EES) is an automated IT system for registering non-EU nationals who are traveling for a short stay to any of the European countries using the system.
Non-EU nationals are those who do not hold the nationality of any European Union country or the nationality of Iceland, Liechtenstein, Norway or Switzerland. These individuals will be required to register through the EES each time they cross the external borders of any of the participating countries for a short stay, whether they possess a short-stay visa or do not need a visa to stay for a maximum of 90 days in any 180-day period.
Registration exemptions in the EES do apply, and more information can be found here. The EES will not affect people traveling within the Schengen area; it applies only to third-country nationals as they enter or exit the area.
The European Travel Information and Authorization System (ETIAS) is targeted to launch in 2025. ETIAS will require travelers from visa-exempt countries and territories to apply for a travel authorization in order to visit any of the 30 European countries implementing ETIAS for a short-term stay. A valid ETIAS travel authorization will be linked to a traveler’s passport and will be valid for up to three years or until the passport expires, whichever comes first. Individuals will need to get a new ETIAS travel authorization if a new passport is acquired. The registration cost will be €7 (about US$7 — free for travelers under 18 or over 70) and allow for short-term stays — in line with current Schengen rules (normally for up to 90 days in any 180-day period) — for tourism, business or transit purposes. Certain visitors, workers, students and others must still obtain the relevant work permits, student permits, residence permits, etc.
The U.K. recently launched its Electronic Travel Authorization (ETA) system for certain visitors who do not need a visa on short stays in the U.K. (including European nationals) or those who do not already have a U.K. immigration status prior to traveling. An ETA costs £10 (about US$13), permits multiple journeys and is valid for two years or until the holder’s passport expires, whichever is sooner.
Under the ETA system, visitors will be allowed to stay in the U.K. for up to six months for tourism, visiting family and friends, business or study, or three months under the creative worker visa concession.
For more information on the EU’s ETIAS and the U.K. ETA, check out our in-depth breakdown of the two most significant travel systems coming in 2025.
The second-largest economy in Southeast Asia is implementing an ETA system to increase tourism and spur economic growth. The new ETA system coincides with government expansion of visa-free and visa-on-arrival programs to include additional nationalities. Thai officials recently stated the ETA will apply to visa-free (15- and 30-day stays), visa-on-arrival and visa exemption (60-day stay) travelers of all nationalities, with no exemptions for any non-Thai citizens.
The ETA will not be mandatory for long-term visa holders (including nonimmigrant visas), Destination Thailand Visa holders or holders of tourist visas that are issued by the embassy prior to entry. Holders of diplomatic passports will be exempt from the ETA.
Once the system is launched, applications are expected to be available via the existing e-visa platform; however, the official channel has not yet been announced. The Ministry of Foreign Affairs has not yet released all pertinent details, and the start date remains tentative, with further changes to the applicable visa types possible.
The expansion of ETA systems around the world highlights a growing trend in border security. Specifically, border management authorities are focusing on new ways to improve security and increase efficiency. In support of these efforts, authorities are also exploring digitizing travel credentials and enhancing data-sharing agreements along with ETAs to improve travel safety and capacity.
Recently, the EU Commission proposed an “EU Digital Travel application” to digitize passports and identity cards for individuals traveling to and from the Schengen area. This common framework, expected to become available in 2030, would create digital travel credentials for both EU citizens and non-EU citizens when completing systematic checks at EU external borders. These new rules for digital passports and ID cards are designed to make it easier for authorities to verify the authenticity and integrity of travel documents, deter migrant smuggling and detect fraudulent documentation.
In 2023, almost 600 million crossings were recorded at EU external borders. Officials say this number indicates a need to speed up border controls and ensure smoother travel, while maintaining a high level of security. Since 2021, the Schengen strategy has committed to further digitizing procedures at external borders, and the Commission’s Digital Decade framework showcases the EU’s efforts to ensure the digital transformation in Europe in the next decade.
In Canada, the government signed an agreement with EU officials to enhance border security, specifically creating a new information-sharing agreement between the two organizations concerning the transfer and processing of passenger name record (PNR) data. The new agreement forms a legal basis for the transfer and use of PNR data from flights departing from the EU to the Canada Border Services Agency (CBSA). CBSA can use the data to assess the risk of travelers before their arrival in Canada and identify potential security threats. Air carriers will collect information such as number of bags, payment method, seat selection and frequent flyer numbers. Canadian officials stated the agreement strengthens law enforcement cooperation between Canada and EU partners while ensuring strong privacy protections for passengers.
These actions and policies highlight the emerging digital trend in border security guided by principles of secure and sustainable digital infrastructures. With more innovations expected soon, the new ETA systems, digitized travel credentials and increased data-sharing initiatives demonstrate a digital travel transformation currently taking place across the world.
What can travelers do to prepare?
Travelers can take several concrete actions now to prepare for these new travel registration programs:
What can employers do to prepare?
Employers also can consider initiatives to take now to prepare for the new travel registration programs:
BAL delivers global coverage that is centrally managed and locally delivered with on-the-ground support in 170-plus countries. Our team provides comprehensive round-the-clock program support and individual casework, all under a unified tech platform. Whether it is strategic advice, critical program analysis or compliance and government strategies support, BAL supports all global immigration needs.
In this week’s episode, BAL’s Stacey Scorza assembles a panel of designated school officials and an executive in employer relations from Southern Methodist University (SMU) to discuss F-1 visa challenges and STEM OPT issues facing international students and employers. Plus, the latest immigration news including an update on the H-1B visa cap and China’s visa-free policy expansion.
In the world of immigration, a Request for Evidence (RFE) is a notice issued by U.S. Citizenship and Immigration Services (USCIS) requesting additional information or documentation for an immigration petition or application prior to rendering a final decision. While an RFE may be discouraging, it does not necessarily mean that an immigration petition or application will be denied, but it may lead to uncertainty and delays when applying for an employment-based visa or work authorization. With the support of your legal partner, you may address USCIS’ queries and overcome the RFE successfully.
By developing a strong employment-based visa application initially, you are more likely to avoid RFEs and achieve faster, more favorable outcomes. Moreover, even if USCIS issues an RFE, strong employment-based applications filed initially often provide robust foundations to push back on any USCIS challenge. Here are some of the common reasons for RFEs, strategies to increase your chance of approval and how to manage RFEs if you do receive one.
While RFEs can seem intimidating and create significant delays, they’re more common than you might think. For fiscal year (FY) 2023, 9.9% of H-1B applications received RFEs — as well as 31.5% of L-1A applications, 38.2% of L-1B applications, 22.6% of O applications and 17.2% of TN applications. Similar trends are evident for FY 2024.
Percentage of visa applications that received RFEs per fiscal year
Source: USCIS Immigration and Citizenship data
During the first Trump administration, the percentage of visa applications that received RFEs climbed to 40% for H-1B, nearly 54% for L-1A, 58% for L-1B, 30% for O and 28% for TN.
Specific reasons for getting an RFE vary depending on the visa type, but there are several common issues across various applications:
Preparation and attention to detail are crucial in avoiding unnecessary delays or denials. While you can’t guarantee a visa application won’t result in an RFE, you can take precautionary measures to reduce the risk.
Understand the specific evidentiary requirements for your case
Each immigration case is unique, so it’s important to thoroughly understand the specific evidentiary requirements for the visa type you apply for. Review USCIS guidelines and instructions to ensure you provide all necessary documentation.
For example, if the petition you are filing requires that the offered position must be a “specialty occupation,” such as an H-1B or an E-3 petition, you must provide a detailed job description as well as supporting documentation that demonstrates the complex nature of the role.
Submit complete and accurate documentation
Incomplete documentation is a common trigger for RFEs, and inaccurate documentation or information can result in the rejection of your petition, or it can greatly increase the difficulty of addressing the RFE itself.
Double-check all forms, supporting materials and evidence to ensure they are complete and up to date. Ensure you submit all required educational transcripts, diplomas and evaluations to demonstrate the foreign national’s qualifications for the position, as well as all the documentation required on behalf of the company.
By providing a comprehensive, well-organized package, you minimize the chances of receiving an RFE.
Address potential red flags proactively
USCIS officers are trained to identify potential red flags in petitions and/or applications. Take a proactive approach by addressing any potential concerns or red flags in your initial submission. Include explanatory letters, additional evidence and relevant supporting documentation to clarify any issues.
For example, one common red flag for adjudicating officers is whether or not a legitimate employee-employer relationship exists between the company and the employee. Make sure to include employment contracts, offer letters, pay stubs and tax documents to establish a clear employer-employee connection.
BAL has developed AI and automation-powered analysis tools specific to immigration policy and industry benchmarking of historical data, enabling us to identify potential high-risk areas in a case and take proactive measures to achieve swifter, more favorable decisions.
In one case, BAL’s data analysis increased a client’s overall approval rate on some immigration case types by as much as 20%.
If you do receive an RFE on a visa application or petition, there is still a good chance it can be approved — you just need to respond to each of the issues identified in the Service’s request promptly and thoroughly.
Follow these steps to increase your chances of approval:
In general, stay organized, thorough and focused on addressing the concerns raised.
Hiring foreign national talent can help fill skills gaps and bring specialty knowledge into your workforce, but RFEs can cause major delays, unnecessary stress and additional expenses in the work authorization process.
BAL’s attorneys work diligently to avoid RFEs and ensure a seamless process. Our innovative technology and decades of experience in employment-based immigration law have led to a lower percentage of RFEs than the national average. For example, while 9.6% of H-1B petitions resulted in RFEs for FY 2023, only 5.3% of H-1B petitions filed by BAL received RFEs in the same period.
Contact our team to learn how we can provide a smooth, error-free visa application or petition process.
In this week’s episode, BAL’s Jeremy Fudge and Frieda Garcia celebrate the BAL Immigration Report’s 100th episode, and gratitude for BAL’s exceptional clients, historic milestones and growth over the last 44 years. Download the episode wherever you get your podcasts and don’t forget to subscribe!
In this week’s episode, BAL’s Edward Rios and Christopher Barnett discuss AI implementation and adoption in the global mobility arena.
Plus, the latest immigration news including an update on litigation against the Keeping Families Together program.
The 2024-25 winter holiday travel season is expected to be one of the busiest on record, with an estimated 790 million people traveling internationally. In addition to key reminders like checking passport and visa validity expiration dates, the following are recommendations from BAL’s Global and Consular Program and Government Strategy teams that foreign nationals can use for their travel planning.
The State Department launched the new version of its Smart Traveler Enrollment Program (STEP) on Sept. 16, 2024. STEP is a free service provided by the State Department for U.S. citizens and foreign nationals to enroll their trip abroad. This enables the State Department to make contact in case of an emergency.
Enrollees can also sign up to receive country-specific travel alerts about health, weather, safety and security in a country. The online process takes about 20 minutes to complete and involves signing in or creating a new account here and filling in basic personal information, trip details for any upcoming trips and alert preferences.
Information can be updated for every trip abroad. Those with a previous STEP account need to reenroll in the updated program.
Although appointment availability is improving, not all U.S. embassies and consulates adjudicating visas will be able to accommodate quick turnarounds.
Within the last three months, multiple consulates or country groups have transitioned to a new U.S. portal that travelers can access to set up an account, pay fees and book a visa interview appointment slot. There are several portals, depending on filing country, that travelers must access. BAL recommends starting your process at www.ustraveldocs.com.
When picking a date on the appointment portal, consider the length of processing time it will take the government to issue a new visa. During the holidays, visa issuance can take 7-10 days or even longer. Travelers are encouraged to secure updated and valid documents as early as possible or before setting travel dates.
It is vital to check the expiration dates on U.S. immigration documents, especially visas and passports, months ahead of planned trip dates. Depending on your visa classification, other documents may be required when returning to the U.S. after a trip abroad, and those documents may also have an expiration date. Passports must generally be valid for at least six months. Ensuring all required documents are valid will help avoid being turned away at a U.S. port of entry.
Remember that because government offices will be closed for end-of-year holidays, travel interruptions can become more complicated.
Foreign nationals can visit the State Department’s travel advisory website ahead of departure for more detailed information about potential travel concerns at their destination. BAL is available to assist employers and individuals in need of additional information or more tailored advice and can be contacted here.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved.
Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
In January 2024, two decades after the 9/11 terrorist attacks led to the discontinuance of domestic nonimmigrant visa renewals, the U.S. Department of State conducted a domestic visa renewal pilot program. The limited-time initiative allowed certain H-1B visas to be renewed in the U.S. instead of in a foreign country. The pilot program was used to assess the viability of a domestic visa renewal program and its efficacy in reducing visa wait times.
From Jan. 24, 2024, until April 1, 2024, certain H-1B visa holders were able to apply to renew their H-1B visa in the U.S. Prior to the pilot, BAL created a pre-assessment questionnaire to help applicants determine whether they might qualify to participate in the pilot. The State Department also released its own pre-assessment questionnaire on travel.state.gov.
Reaction to the program was largely positive, with experiences exceeding expectations related to timing and ease of participation. BAL subsequently provided program feedback, as did the American Immigration Lawyers Association, including recommendations for program improvements, expansion and permanence.
Although the Visa Office has indicated that it is actively pursuing a broader, long-term program to provide domestic visa renewals, it does not anticipate being able to launch a program until 2025. The result of the 2024 presidential election may change the program’s trajectory entirely.
Under the current Biden administration, the government plans to implement a domestic visa renewal program, with a program launch expected in 2025. The program would include H-1B visa holders who were not originally included in the pilot (e.g., someone whose H-1B visa was issued somewhere other than in Canada or India). Moreover, unlike the pilot, family members on H-4 visas would be eligible to apply for domestic visa renewal. The program is also expected to include other visa categories. (Note: Current regulations already permit the government to issue E, H, I, L, O or P visas in the U.S., so the Visa Office can expand domestic renewal to all of these categories without changing its regulations.)
If Vice President Kamala Harris is elected, the government will likely continue to move forward with its plans to create a domestic visa renewal program, though it is unclear if any particular visa categories or other visa policies may be prioritized over others.
If former President Trump is elected, the future of the domestic visa renewal program may be in jeopardy. During the prior Trump administration, the government limited interview waiver authorities, requiring visa applicants to be interviewed at a U.S. embassy or consulate for visa renewal. As any domestic visa renewal program requires the individual to qualify for interview waiver, should Trump return to office, the program may never get off the ground — at least for another four years.
Whether the Biden administration tries to push domestic visa renewal forward before inauguration is not known. If they do, and if the program is operational before President Biden’s term officially ends, dismantling it might prove difficult for the next administration, as businesses would surely apply a great deal of pressure to keep the program in place. If a domestic visa renewal program isn’t in place prior to the 2025 inauguration, it is unlikely that a second Trump administration would revive it — even if all planning and details were already in place and an announcement were imminent.
BAL sees three challenges that need to be overcome before a new domestic visa renewal program could successfully be implemented:
Due to the election, any projected timeline in connection with the current administration’s plan for a domestic visa renewal program is up in the air. Should the government move forward with implementing a new domestic visa renewal program in 2025, BAL expects that some of the eligibility criteria for visa renewals would be similar to that of interview waiver applicants applying for visas abroad and the pilot criteria, with some exceptions. For example, during the pilot, applications and materials had to be submitted to the Visa Office within a specific period, whereas in a new program, applicants should be able to apply whenever the need would arise.
Criteria limiting visas issued within a certain time frame and at certain consular posts also is unlikely to apply. The State Department may not immediately open the program to all eligible visa classes but may gradually add applicants over time.
To get the latest updates on domestic visa renewals, immigration news and more expert analysis, subscribe to BAL’s newsletter.
<span data-mce-type="bookmark" style="display: inline-block; width: 0px; overflow: hidden; line-height: 0;" class="mce_SELRES_start"></span>
In this week’s episode, BAL’s David Wagner and Nathan McKinlay-Roy discuss when employers should consider treaty visas as viable options for their immigration programs. Plus, the latest immigration news.