Nonimmigrant visa issuance continues to rise.

Diversity Visa results are now available.

And how updates to the Department of Labor’s Schedule A occupation list could help the green card process for workers in critical industries.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and the BAL news site.

This alert 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.

What is the H-1B classification?

H-1B is a nonimmigrant classification for temporary employment in the United States. There are three types of foreign nationals (also known as “beneficiaries”) who may have petitions filed on their behalf under the H-1B classification:

  • Specialty Occupations — This includes beneficiaries who are coming to the U.S. to perform services in a “specialty occupation.” A specialty occupation is a position that normally requires a bachelor’s degree (or higher degree) in a specific field. This is the most common type of beneficiary in the H-1B classification.
  • Department of Defense Cooperative Research and Development Projects — This includes beneficiaries who will work in cooperative research and development projects administered by the U.S. Department of Defense.
  • Fashion Models — This includes beneficiaries who are fashion models of distinguished merit and ability.

What are the general requirements for the H-1B classification?

The main requirements to be eligible for the H-1B classification are:

Employer-Employee Relationship

The foreign national must have an “employer-employee” relationship with the petitioning U.S. employer (also known as the “petitioner”). This means the petitioner must generally have the right to hire, pay, fire, supervise, or otherwise control the work of the beneficiary.

Specialty Occupation

The foreign national must be coming to the U.S. to perform services in a “specialty occupation.” This means an occupation that requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor’s degree (or higher degree) in a specific field as a minimum for entry into the occupation.

Paid Actual Wage or Prevailing Wage

The employer must pay the foreign national at least the “actual wage” or “prevailing wage” for the occupation, whichever is higher. These are:

  • Actual Wage — The wage rate paid by the employer to employees with similar experience and qualifications for that position.
  • Prevailing Wage — The wage rate required by a union contract or the average wage rate paid to similarly employed workers in the specific geographic area.

Foreign National’s Qualifications

The foreign national must meet the minimum educational and/or experience requirements for the specialty occupation position. This means the employer must demonstrate that the foreign national holds the required bachelor’s degree (or higher degree), or has sufficient relevant experience equivalent to the minimum educational requirements for the specialty occupation position, and is otherwise qualified for the specialty occupation position.

What limits are there on the H-1B classification?

Annual Cap of H-1B Visas

The H-1B classification is limited to an annual cap of 85,000 new visas in each fiscal year. This includes 20,000 H-1B visas set aside for foreign nationals who obtained a master’s degree from a U.S. university. New H-1B visas become available each year on October 1, which is the start of the government’s fiscal year. Because the demand for new H-1B visas is often higher than the available 85,000, U.S. Citizenship and Immigration Services (USCIS) conducts a lottery in March of each year to select which U.S. employers may petition for one of the new H-1B visas that will be available the following October.

Check out BAL’s analysis of the FY 2024 H-1B cap registration and selection numbers for fiscal years 2021-2024.

Check out BAL’s latest H-1B Cap Post-Lottery podcast episode!

Time Limitations

H-1B classification may be granted in increments of up to three years at a time and extended in increments of up to three years at a time. Extensions can be initiated up to six months prior to the expiration of H-1B status.

In general, a foreign national may hold the H-1B classification for a maximum of six years. Time spent in H-1B, L-1A, and L-1B classifications are counted together toward the applicable maximum.

After reaching six years in H-1B classification, the foreign national may:

  • Change to a different nonimmigrant classification in order to continue working in the U.S., if the foreign national is eligible for another classification;
  • Obtain lawful permanent residence (a “green card”) to continue working in the U.S.; or
  • Depart and remain outside of the U.S. for one continuous year before obtaining a new H-1B visa from the available 85,000 each fiscal year.

Extensions Beyond Six Years

There are exceptions that allow extension of a foreign national’s H-1B classification beyond the six-year maximum, but the foreign national must:

  • Have a Form I-140 (Immigrant Petition for Alien Worker) approved on the foreign national’s behalf but be unable to receive lawful permanent residence (a “green card”) due to a backlog of immigrant visa availability for the foreign national’s country of birth; or
  • Have a Labor Certification and/or I-140 (Immigrant Petition for Alien Worker) filed on the foreign national’s behalf at least 365 days before the end of the foreign national’s six years in H-1B classification.

What is the process to obtain H-1B classification?

Obtaining H-1B classification requires a number of steps:

  • File online registration for cap-subject H-1B — If the foreign national is subject to the annual cap of 85,000 new H-1B visas, the employer must file an online registration form during the H-1B cap registration period in March. After the registration period closes, USCIS conducts a lottery to select registrations. If USCIS selects a registration filed by the employer, the employer may file an H-1B cap petition on Form I-129 (Petition for Nonimmigrant Worker) for the foreign national named in the registration. If the foreign national is not subject to annual cap, the H-1B process starts with obtaining a certified Labor Condition Application (LCA) described below.
  • Obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor — The employer must prepare a Labor Condition Application (LCA) to file with the U.S. Department of Labor. This process requires the employer to attest to the working conditions and wages for the intended foreign national. The employer must also post copies of the LCA or notice of filing at relevant work locations to provide notice to other employees that it will be filing the LCA with the U.S. Department of Labor. The employer must submit the LCA to the U.S. Department of Labor for certification.
  • File Form I-129 (Petition for Nonimmigrant Worker) with USCIS  The employer must submit a Form I-129 (Petition for Nonimmigrant Worker) to USCIS with information and supporting documentation to demonstrate that the position and foreign national qualify for the H-1B classification. Premium processing is available for Form I-129 petitions filed with USCIS for the H-1B classification.

Premium processing is an optional service offered by U.S. Citizenship and Immigration Services (USCIS) that provides expedited processing for certain Forms I-129 (Petition for a Nonimmigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker). In most cases, premium processing for Form I-129 petitions for the H-1B classification guarantees processing by USCIS within 15 calendar days for an additional fee. If USCIS does not take action on the Form I-129 within the 15 calendar days after it receives the request for premium processing, USCIS will refund the additional fee and will continue with expedited processing.

 

What is the difference between H-1B “change of status” petitions and H-1B “consular” petitions?

If a registration is selected in the lottery, there are two options for filing the H-1B petition during the 90-day filing window, depending on where the foreign national is when the petition is filed and how the foreign national plans to activate the H-1B status after the petition is approved.

Change of Status: If currently in the U.S. and in another valid status (e.g., F-1, L-1) at least until October 1, we can file the H-1B cap petition as a “change of status” petition, meaning that the H-1B status will automatically take effect on October 1, or on the date the petition is approved, whichever date is later. If the foreign national is currently in the U.S. in F-1 status — including an Optional Practical Training (OPT) or STEM extension — but their status will expire before October 1, they may be eligible for a cap gap extension of their F-1 status to that date.

Consular Notification: However, if the foreign national is not in the U.S. at the time the H-1B petition is filed, does not have another status valid until October 1, or if other situations (explained below) apply, the H-1B petition is filed as a “consular notification” petition. In this situation, in order to activate H-1B status after the H-1B petition is approved, the foreign national will need to enter the U.S. with the H-1B approval notice from USCIS and a valid H-1B visa stamp in their passport. The foreign national will need to obtain an H-1B visa at a U.S. embassy or consulate while outside the U.S. H-1B status will take effect after the foreign national obtains the H-1B visa and uses it and the H-1B approval notice to enter the U.S. If in the U.S. when the H-1B petition is approved, the foreign national will need to leave the U.S. and re-enter with their H-1B approval notice after receiving their H-1B visa from the U.S. embassy or consulate. Note that Canadian citizens are exempt from the visa requirement and can activate their H-1B status by entering the U.S. with the H-1B approval notice. The earliest the foreign national can enter the U.S. to activate H-1B status is ten days before the starting validity date on the H-1B approval notice.

When will H-1B status take effect?

If a foreign national’s case is filed as a change of status, H-1B status will automatically take effect on October 1, 2023, or on the date the petition is approved, whichever date is later. If the case is filed as a consular notification, H- 1B status will take effect after the foreign national activates H-1B status by entering the U.S. with their H-1B visa and H-1B approval notice. As a reminder, Canadians are visa exempt and do not have to apply for a visa at a U.S. embassy or consulate. To activate their H-1B status, they can show their H-1B approval notice to a Customs and Border Protection officer when entering the U.S.

Do all foreign nationals have to travel to activate H-1B status?

If a foreign national’s H-1B petition is a change of status, he or she does not have to travel to activate H-1B status. If the H-1B petition is a consular notification, the foreign national must obtain an H-1B visa at a U.S. embassy or consulate (unless Canadian) and then travel to the U.S. to be admitted to the U.S. in H-1B status.

What do foreign nationals need in order to obtain an H-1B visa stamp at a U.S. embassy or consulate abroad?

Foreign nationals will need to bring the original H-1B approval notice and a copy of the H-1B petition. In addition, foreign nationals will need to review the U.S. embassy or consulate’s website to learn what specific documentation is required, as every U.S. embassy or consulate has different application procedures and requirements.

Are family members of H-1B workers eligible for nonimmigrant classification?

Spouses and unmarried children under the age of 21 may obtain H-4 classification based on their family relationship to the H-1B workers.

BAL can help!

Do you need BAL to file H-1Bs for your employees/organization? Click here to to contact us so we can help.

 

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 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.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 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.

BAL Partner Ashley Foret Dees is one of the nation’s preeminent experts on H-2 visas and the founder of the Louisiana State Bar Immigration Law Section. Since 2009, she has been a pivotal asset to corporate employers reliant upon temporary or seasonal workers to secure global talent and remain competitive. We recently sat down with Ashley for a conversation about trends in H-2 visa practice and her experiences as a woman in the profession.   

What are your areas of practice? 

My specialty is representing employers interested in securing the critical skills of global temporary or seasonal workers through the H-2 visa process. There are two types of H-2 visas: H-2A and H-2B. Both visas permit an eligible U.S. employer or agent to hire a temporary or seasonal worker who is a foreign national. An H-2A visa is used solely for the hiring of agricultural workers, and an H-2B permits the hire of nonagricultural workers.  

I also represent clients in family immigration, including defense of removal, asylum cases and DACA.  

What’s the difference in processing time between H-2A and H-2B visas in FY2023? 

H-2A agricultural visas are much easier — you can turn around the entire filing in 60-75 days. Those are very fast because there’s no cap for H-2As.  

H-2 B visas are so different, especially this year. We remind employers that nowadays they have to back up their program timeline if they want to apply for an H-2B. Prevailing Wage Determinations are now taking an extra 45 days, which is long. That backs up the timeline to April 15. So, when people call in July and say, “I’d like to talk about October H-2B visas,” it’s like, “Well, we can talk about next year’s October visas.”  

What other hurdles are employers interested in H-2 visas encountering? 

The majority of employers who utilize the H-2A and H-2B visa programs are small businesses trying to leverage themselves into a really complicated federal visa program. Most small business owners don’t have a grasp on what opportunities are available for employers and find the process intimidating.  

What questions are H-2B employers asking about this year’s lottery? 

Everyone also wants to know about strategy right now. They’re interested in moving start dates, trying to get a supplemental visa number from one of the special reserved countries, and what to do if they’ve got such a bad position in the lottery their staff won’t be able to arrive this year. I help employers strategize, predict and find solutions within the H-2 program.  

Can employers with preexisting immigration programs leverage H-2 visas as a mobility strategy?  

There are some entities, like hotels, that should consider H-2s and other visa programs in combination with their existing programs. Hotels could mix having a J-1 trainee program with an H-2 visa program, and then move some of those workers into PERM status. I think there are a lot of industries out there that have a peak need to supplement their staff. 

What interested you in immigration law as a field of practice? 

The Catholic Charities (CC) in my area of Louisiana ran a very large refugee resettlement program that needed an attorney who spoke Spanish. My introduction to immigration law was doing asylum work with CC, which continued after graduation. Since there were no other practitioners in my area of the state practicing immigration law, I hung a shingle of counsel to a firm in 2009 — and opened my own practice in 2013. 

What attracted you to becoming a partner with BAL and relocating your entire team to the firm? 

I run a global practice, and my client employers are all over the country. It was an opportunity I couldn’t pass up — to leverage BAL’s advanced technologies and resources and continue to expand my H-2 practice much faster than I could on my own.  

BAL is award-winning when it comes to advancing the status of women attorneys in the profession. How important was that to you when you were considering joining BAL? 

So important. I think BAL having such diverse partners, attorneys, staff — and particularly women — is awesome 

Most of my clients are men. The interaction with women partners and attorneys is so crucial to my growth, learning and understanding of balance in my own life. And I think women immigration attorneys — and women attorneys in general — are such a powerhouse. 

Ashley Foret Dees is a partner with BAL and a leading national expert and strategist in the areas of H-2A and H-2B employment visas. She has over a decade of experience representing clients in agricultural, seafood, hospitality and other industries. Ashley is a regular speaker on H-2 visa topics at the American Immigration Lawyers Association (AILA) Annual Conference and AILA Mid-South Chapter, and previously served on the AILA National Pro Bono Committee. She is also a member and former H-2 Visa Chair of the AILA Department of Labor Liaison Committee. Ashley is fluent in Spanish and founded the Louisiana State Bar Immigration Law Section, which she chaired for several years.  

BAL Senior Associate Cecilia Lai will speak on a panel about EB-1A/Bs, NIWs and O visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We recently sat down with Cecilia to discuss these topics.   

What is the number one challenge employers face when it comes to EB-1A and EB-1B petitions?

Both EB-1A and EB-1B petitions have always faced high scrutiny and must establish that the individual is internationally recognized as extraordinary or outstanding, resulting in a subject evaluation by USCIS adjudicators.  

It can be difficult to manage expectations for both the beneficiary and employers due to inconsistent adjudications or a lengthy Request for Evidence (RFE) or Notice of Intent to Deny (NOID) from USCIS. The premium processing cases have a higher likelihood of receiving NOIDS that can be difficult to overcome, especially because you are only provided 30 days to respond. We have seen more successful outcomes when USCIS provided extensions for responses to NOIDs as part of COVID-related flexibilities when individuals were able to take advantage of the additional time. However, the flexibilities recently expired and will not apply for RFEs or NOIDs issued on March 23, 2023, and later.  

What options do employers have other than H-1B or L-1 visas?

Employers can use O-1s as a last resort to prevent the loss of work authorization for employees such as F-1 students who had no luck with the H-1B lottery or individuals in H or L who are maxing out on their time. When employers are faced with seeing individuals need to relocate from or leave the U.S., they should consider an O-1 visa, so they don’t have to transfer the individual outside the U.S., which can be costly, or worse, completely lose the talent. 

What are some risks in applying for an O-1?

The employer needs to have an appetite for risk and patience for the hiring process. O-1s are evidence heavy and highly subjective, so that can mean delays in hiring, especially if USCIS issues a Request for Evidence. We typically walk BAL clients through the evaluation for the O-1 to manage expectations for any risks of delays or denials, especially for highly sought candidates. Also, the approval rate for O-1 visas is quite high, generally between 80% and 95%.  

What are other challenges associated with O-1s?

Outside of the traditional occupations for O-1s, such as researchers, scientists, and artists and entertainers, most people don’t think about O-1s for business or other roles. While it’s true there are three criteria to meet — temporary nature of the role, demonstrated extraordinary ability by sustained national or international acclaim, or a record of extraordinary achievement in the motion picture industry — there is one that is a “catchall,” and that is “any other comparable evidence that shows someone has extraordinary ability.” This is an area that you can let the creative juices flow.  

How did you decide to practice immigration law?

I first started in entertainment law while still studying for the bar when our family friend, who manages a native Dallas rapper, introduced me to an entertainment lawyer who needed assistance. But immigration law was probably my destiny. My maternal grandparents first came to the U.S. from China. My mother met my father when he was a foreign exchange student from Hong Kong studying in the U.S. When I finished law school, my family and friends were always turning to me for immigration advice. They wanted someone they could trust even though I didn’t yet have immigration law experience. So I made the switch from entertainment law to immigration law. 

What do you find rewarding about practicing immigration law?

What’s really rewarding about immigration versus entertainment is you see things through to a resolution. You work with individuals who have a dream and dreams for their families, and you experience the positive impacts firsthand. With entertainment law in Dallas, there is seldom a “resolution.” We set up the client’s company and contracts, and things just don’t move forward or the client moves to L.A. for more opportunities. However, I am still involved in the industry as a legal advisor to the Asian Film Festival of Dallas and served as its executive director recently. 

Cecilia Lai is a Senior Associate in BAL’s Dallas office. Cecilia previously handled immigration for one of the largest tech companies in the world. Currently, Cecilia works with multiple clients in the advertising and biotech industries. She finds innovative ways to effectively manage the companies’ immigration needs for foreign national employees in the United States. Cecilia has worked with the clients’ lead stakeholders to create a competitive immigration program in multiple industries and find solutions to talent acquisition and retention that align with their business goals. She finds innovative solutions during a time of fierce competition for STEM talent and a highly fluid immigration policy environment. 

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 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.

Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on AppleSpotify and Google Podcasts or on the BAL news site.

‌This alert has been provided by the BAL U.S. Practice Group.

Copyright ©2023 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 this tight labor market where companies cannot afford to lose talent, delays in immigration processing are preventing U.S. businesses from retaining high-skilled workers in key job roles, such as tech, that are fueling the economic recovery.

Delays by U.S. Citizenship and Immigration Services in renewing work authorization for spouses of high skilled H-1B and L-1 workers are frustrating their ability to stay in the workplace. The delays have grown so long that it is now a common occurrence for these workers to see their employment authorization expire before their renewals are approved.

These ongoing delays are causing significant disruption for U.S. business who have been forced to take thousands of H-4 and L-2 employees off payroll and put projects on ice, while these employees wait for their employment authorization document (EAD) to be renewed. Employees whose work authorization lapses not only interrupt their careers; they may be unable to renew a driver’s license, obtain health insurance or travel. These spouses are highly educated and employed in high-skilled occupations, including in tech and other STEM fields.

H-4 spouses contribute an estimated $7.5 billion to the U.S. economy. In a lawsuit filed earlier this month, an H-4 spouse sued U.S. Citizenship and Immigration Services for causing him to lose his job as an analyst with one of the world’s leading tech companies because his work authorization expired while he waits for the government to process his renewal.

The watchdog Government Accountability Office has criticized the agency for failing to process immigration applications in a timely manner. While the number of annual petitions grew about 25% between 2015 and 2020, applications for employment authorization documents (EADs) surged by 80%, and the total number of pending cases jumped 85%, creating a growing backlog that is leaving many applicants indefinitely on hold. The GAO pointed to systemic USCIS flaws, including the lack of a sustainable workforce recruiting and retention plans, failure to request adequate resources and funding, and failure to track its caseload with a reliable case management process. “The growth in USCIS’s pending caseload and processing times impacts the individuals, families, and businesses who rely on the immigration system,” the report said.

So far, the agency has taken only incremental steps to address the backlogs and delays. The government could do much more to mitigate risks of current work authorization from expiring, such as providing automatic extensions of work authorization while renewal applications are pending and giving L-2 spouses automatic work authorization on the basis of their relationship to the L-1 visa holder, without needing to apply for an EAD. Under current policy, the earliest an applicant may file to renew their EAD is six months prior to the EAD expiration, but current processing times can take well over a year, leaving many H-1B and L-1 spouses out of work for months at a time. A class action lawsuit was filed last month seeking automatic extensions for spouses who have applied for EAD renewals.

U.S. companies have consistently advocated for H-4 spouses to be eligible for work authorization. These workers add depth of talent and skill to the U.S. economy: 90% of H-4 spouses hold a bachelor’s degree, nearly 60% have a master’s degree, and two-thirds of H-4 EAD-holders work in STEM fields. Moreover, H-4 spouses are eligible for work authorization only if they are already in line for permanent residency, so their contributions are not transitory.

While USCIS addresses its long-term workforce and funding issues in response to the GAO report, it should take immediate steps to mitigate the impact on employers and the economy when businesses lose valuable talent for no other reason than government processing delays.

Nassim Mahzoon is a Partner in the Santa Clara, Calif., office of Berry Appleman & Leiden LLP where she counsels clients on all aspects of corporate immigration and compliance, and provides holistic and strategic guidance to businesses and their employees.

This article was originally published in the California Business Journal on Nov. 3, 2021.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.

A multibillion-dollar shortfall at the U.S. Department of State’s Bureau of Consular Affairs is threatening to slow job growth and weaken the country’s first-line defense against national security threats.

We’re not talking construction of border “walls,” but a latent risk that could impact the readiness of the U.S. consular corps — the individuals responsible for the welfare and protection of U.S. citizens abroad, issuance of passports to U.S. citizens, and facilitation of travel to the U.S.

Primarily funded through fees generated from passport and visa applications, the bureau has lost out on nearly $4 billion in revenue since the pandemic led to the suspension of those services worldwide.

The result is predictable and unsustainable: Consular Affairs lacks money to hire and train employees. Critical anti-fraud programs are starved of people and resources. And continued budget shortfalls will prevent the government from modernizing its IT systems to enhance visa processing and protect against cybersecurity threats.

Visa and passport delays also mean fewer tourists, fewer jobs for Americans, and a slower economic recovery.

Pre-pandemic, the travel and tourism industry generated trillions of dollars for the economy and nearly 10 million American jobs. Travel industry experts estimate that the loss to the U.S. economy for 2020 alone totaled nearly half a trillion dollars.

As a former attorney in the State Department’s Visa Office, I believe the Bureau of Consular Affairs can expand capacity and restore financial stability by making common-sense changes to the way the government processes visa applications. These actions can be achieved with little to no legal or regulatory changes and, just as importantly, without cost to U.S. taxpayers.

This starts with the government maximizing use of its resources and streamlining visa processing. Under current Visa Office polices, most visa processing cannot be done remotely. COVID safety precautions also limit the number of staff that are able to be physically in the office. Opening up work streams that can be performed remotely will allow those in the office to focus on work that cannot be done outside the consular section.

Moreover, eliminating manager approval to grant exceptions to the COVID travel bans – a simple process change that could be implemented within weeks – would free up critical resources at consular posts around the world.

Moreover, the Visa Office could leverage the Secretary of State’s authority to waive in-person interviews for additional classes of low-risk applicants. The Biden administration deserves credit for using its authority to reduce the number of unnecessary interviews, but more could be done. Consider, for example, a foreign student who has been hired by a U.S. company and wants to obtain a work visa. The student has undergone extensive security vetting and has been monitored by Immigration and Customs Enforcement since their entry into the United States. Expanding consular officers’ ability to waive interviews would help reduce visa backlogs by freeing up interviews for those who really need additional in-person screening.

The government should also re-open U.S.-based visa renewals to foreign temporary workers, allowing individuals who have lawfully maintained their immigration status to obtain new visas from within the U.S. rather than forcing them to travel abroad. Moving the work to the U.S., where it was performed several decades ago, would create jobs for American workers and help U.S. businesses avoid additional costs associated with lengthy travel delays. The agency could further increase revenue by imposing a surcharge for the convenience of not having to travel overseas. Government lawyers would be more likely to sign off on the change if Congress clarified that federal judges could not second-guess visa denials.

Each of these solutions supports the bureau’s mission by allowing consular officers to devote more of their time to advancing the security and economic interests of the U.S.

Travel and tourism in the U.S. have already been devastated by the COVID-19 pandemic and the resulting budget shortfall has further jeopardized American jobs and U.S. security interests. To jumpstart its recovery, we must have a capable, well-resourced consular corps to increase U.S. passport and visa issuance capacity and energize the American economy, while continuing to protect U.S. national security interests.

Tiffany Derentz is a Senior Counsel in the Washington, D.C., office of Berry Appleman & Leiden LLP. She formerly served in the U.S. State Department’s Bureau of Consular Affairs as a senior adviser to the Chief Legal Adviser for immigration affairs, and has been at the forefront of legal issues impacting consular operations at U.S. Embassies and Consulates.

This article was originally published in the California Business Journal on Sept. 20, 2021.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.