State Department Posts Guidance on New Domestic Visa Renewal Pilot Program Ahead of January 29 Launch; Online Self-Assessment Tool Available

The U.S. Department of State’s guidance primarily confirms details already released to the public about the H-1B domestic visa renewal pilot program, with some additional explanations. The agency’s online self-assessment tool is available for potential applicants to determine whether they meet the general screening parameters for the domestic visa renewal program.

The issue

The State Department has posted guidance and FAQs on its website confirming the timing and parameters of its highly anticipated domestic visa renewal pilot program. As previously reported, the program, which is set to begin on January 29, will allow eligible applicants to renew an H-1B visa in the United States, without the need to travel to a U.S. consulate abroad.

The agency has also made live its online prescreening assessment tool for participation in the pilot program. However, in its FAQ guidance, the State Department warns that the online tool is not capable of screening out all unqualified applicants, so foreign nationals cannot know with absolute certainty whether they qualify for participation in the pilot.

As a reminder, the pilot will accept applications until April 1, 2024 (or when all application slots are filled, whichever comes earlier) and will be limited to 20,000 applications. Eligibility for the pilot is limited to a narrow group of individuals who received an H-1B visa from a U.S. embassy or consulate in Canada or India during a specific timeframe.

To be eligible for domestic visa renewal, applicants must be residing in the United States and meet the following criteria:

• Their prior H-1B visa that is being renewed was issued 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.
• They are not subject to a nonimmigrant visa issuance fee, commonly called a “reciprocity fee,” based on their country of citizenship.
• They are eligible for a waiver of the in-person visa interview requirement under the State Department’s current policy (“interview waiver program”).
• During a previous visa application, they submitted ten fingerprints to the State Department.
• Their prior visa does not include a “clearance received” annotation.
• They do not require a waiver of visa ineligibility.
• They are the beneficiary of an approved and unexpired H-1B petition.
• Their most recent admission to the United States was in H-1B status.
• They are currently maintaining H-1B status in the United States and have a valid, unexpired H-1B I-94 form.
• They intend to reenter the United States in H-1B status after a temporary period abroad.

Eligibility for interview waiver program as a requirement for H-1B renewal pilot

To qualify for the domestic renewal program, the applicant must be eligible for the State Department’s general interview waiver program. Under the State Department’s recently extended program, an applicant who has been previously issued a visa in any classification other than a B visa may be eligible for a waiver of the in-person interview requirement, if they are applying within 48 months of the expiration of their most recent visa. As applicants in the stateside visa renewal program must necessarily have been previously issued an H-1B visa, such applicants may be eligible for the interview waiver program, provided their previous visa did not expire more than 4 years ago, and they do not have any disqualifying factors.

Factors that would disqualify an individual for the interview waiver program, and would thereby render the individual ineligible for stateside visa renewal, include the following:

• A previous visa refusal, unless the refusal was subsequently overcome and a visa issued 
• An apparent visa ineligibility or potential visa ineligibility
• Being a national of certain countries, including those designated by the Secretary of State as a state sponsor of terrorism (currently, Cuba, Iran, North Korea, and Syria)
• Being subject to a case-by-case discretionary determination by the adjudicating consular officer that an in-person interview is needed to assess the applicant’s visa eligibility

The State Department cautions that the pilot program’s online prescreening tool is not capable of screening out all unqualified applicants, so it is not possible for an applicant to know with certainty whether they qualify for an interview waiver, and for the pilot stateside visa renewal program, until their application has been submitted and reviewed by the State Department.

Explanatory guidance from State Department FAQs

The State Department provided the following clarifications relating to eligibility for the domestic visa renewal pilot program:

• Verifying that an applicant meets the requirement of residing in the United States: According to the State Department’s posted FAQs, the agency will review available information, including the applicant’s home address specified on the DS-160 visa application form and Form I-129 H-1B petition, the duration of employment, and the applicant’s arrival and departure records, to confirm that the applicant is residing in the United States. Applicants will not be required to submit evidence of their U.S. residence with their visa application, though the State Department may request such evidence after reviewing the application.
• Verifying that the applicant meets the requirement of intending to reenter the U.S. in H-1B status after a temporary period abroad: As a foreign national living in the United States only needs a valid visa if they intend to depart the U.S. and re-enter, the State Department has limited program eligibility to applicants residing in the United States who intend to reenter the country after a temporary trip abroad. The State Department’s posted FAQs clarify that applicants are not required to submit evidence of this intent with their application; however, the agency may request such evidence in individual cases. It is not yet clear what documentation would be requested as evidence for this requirement.
• Eligibility for those who change H-1B employers after entry: The State Department’s FAQs confirm that an applicant who entered the United States in H-1B status and changed H-1B employers after entry may still qualify for the pilot program if they are currently maintaining H-1B status and meet all other requirements for program eligibility.

Application process for H-1B renewal pilot

The new FAQs reiterate information already released to the public regarding the pilot program application process, provided in full below.

General process: Applicants will be required to apply for the pilot program on a dedicated State Department webpage that will become fully operational closer to the opening date. The webpage will first require a self-guided assessment for pilot eligibility before the applicant moves on to complete the standard Form DS-160 nonimmigrant visa application. The self-guided assessment is available now at this site.

Application filing slots will be made available weekly on the following dates:

• January 29, 2024;
• February 5, 2024;
• February 12, 2024;
• February 19, 2024; and
• February 26, 2024.

There will be a limit of approximately 4,000 applications per week – 2,000 from applicants with visas issued by a U.S. consulate in India and 2,000 from applicants with a visa issued by a U.S. consulate in Canada. Applications will be handled on a first-received, first-processed basis until the weekly limit is reached.

When the application limit is reached each week, the State Department will close the application website until the next application slot release date. Applicants who are unable to apply on one application date may reattempt application on any of the remaining application dates during the entry period.

Completing and submitting the application: If the applicant passes the initial eligibility assessment referenced above, they will be directed to complete and submit Form DS-160, the electronic nonimmigrant visa application, and pay the required $205 nonrefundable application fee. All fees must be paid online by debit or credit card. 

Once the required fee is paid, applicants will receive instructions on submitting their passport and required application documents to the State Department. The following documents must be submitted, via U.S. mail or commercial courier service:  

• A completed and electronically filed Form DS-160;
• One passport-size photograph that meets State Department specifications;
• A passport valid for at least six months beyond the visa application date and containing a blank, unmarked page;
• A copy of the applicant’s valid, unexpired USCIS H-1B petition approval on Form I-797; and
• A copy of the applicant’s valid, unexpired Form I-94 arrival record.

After the State Department receives the DS-160, application fee, passport, and required documents, the application package will be screened again to assess whether the applicant is eligible for the pilot program. If the application does not pass this screening, it will be returned but the application fee will not be refunded.

Processing times: The State Department anticipates that applications will take 6-8 weeks to adjudicate from the time the passport and supporting documents are received by the agency, though applications could take more time. The State Department will not expedite any applications. The agency expects that all applications accepted in the pilot will be adjudicated by May 1, 2024.

Urgent travel: As noted above, the State Department will not expedite applications for the domestic visa renewal pilot. If an applicant has a sudden need to travel, they can withdraw their application and request the return of their passport. If the application is withdrawn, it will be considered a visa refusal, but according to the State Department, this type of refusal should not prejudice any future application. On the applicant’s next visa application, they will be required to complete a new Form DS-160 and pay a new application fee.

Application denial: If a domestic visa renewal application is denied, the foreign national will need to apply for visa renewal at a U.S. consulate abroad by filing a new Form DS-160 application and another application fee.

If a domestic renewal application is incomplete, it will be refused but the State Department may allow the applicant to cure minor defects such as missing documents, minor errors, or missing information. The Department would require the applicant to provide the requested information by April 15, 2024 in order to overcome the defect before the close of the pilot.

Impact of a denial on an applicant’s eligibility to use ESTA: The State Department’s FAQs confirm its position that a refusal of a domestic visa renewal application constitutes a denial of a visa for purposes of future visa applications and ESTA applications required for travel under the Visa Waiver Program (VWP). For this reason, the State Department has indicated that VWP travelers with prior visa denials, including those denied a visa under the stateside renewal program, should answer “yes” to the question on the ESTA application form that asks whether the individual has ever been denied a U.S. visa or entry into the U.S., and a “yes” answer to this question may impact eligibility for ESTA authorization.

What this means for foreign nationals and employers

The new pilot program presents an opportunity for eligible foreign nationals to renew an H-1B visa within the United States and avoid the potential uncertainties and delays of traveling abroad to renew at a consulate. 

Though the initial pilot is limited in scope and duration, the State Department has said it expects to expand the pilot to new visa categories and countries of visa issuance in the future.

If your organization is interested in participating in the pilot program, contact your immigration counsel as soon as possible to identify potentially eligible employees. Demand for the pilot program is expected to be very high and application slots are limited. Preparing early can help maximize the benefits of the program to your organization.