NEWS & ALERTS
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18 Jun2024
On June 18, 2024, the Biden-Harris Administration announced actions to more efficiently facilitate employment-based nonimmigrant visas for those who have graduated from college in the United States and have a job offer.
This initiative will allow certain individuals to more quickly receive nonimmigrant work visas if they are deemed eligible.
As part of this initiative, the Department will clarify existing guidance to consular officers related to when they should consider recommending that DHS grant a waiver of ineligibility, where applicable.
Q: What will these process clarifications mean for current NIV ineligibility waiver processing steps?
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These clarifications will describe when consular officers should consider recommending that the Department of Homeland Security waive ineligibility for these applicants on an expedited basis, in conjunction with visa applications overseas. However, the processing steps will remain the same.
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Waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office.
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For additional information related to visa ineligibility waivers, please visit our website: Ineligibilities and Waivers: Laws (state.gov).
Q: How can an individual apply for a petition-based nonimmigrant work visa?
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Before an applicant can apply for an H-1B or other temporary worker visa, U.S. Citizenship and Immigration Services (USCIS) must generally first approve a Petition for a Nonimmigrant Worker, Form I-129. For more information about the petition process, see Working in the U.S. and Temporary (Nonimmigrant) Workers on the USCIS website. Once USCIS approves the petition, it will send the prospective employer a Notice of Action, Form I-797.
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Individuals may apply for a nonimmigrant visa after USCIS has approved the petition. There are several steps in the visa application process. The order of these steps and how applicants complete them may vary at the U.S. embassy or consulate where they apply. Please visit the embassy or consulate website for instructions on how to apply.
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Individuals will need to complete the Online Nonimmigrant Visa Application, Form DS-160 and schedule an appointment for their visa interview at any U.S. Embassy or Consulate.
Q: If an applicant needs a visa ineligibility waiver, how can they request one as part of a standard interview?
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Applicants who are denied a visa will generally be notified by the consular officer of the basis for the ineligibility, and whether they are eligible for a waiver of their ineligibility.
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If an applicant is ineligible for a visa based on certain grounds of inadmissibility in Section 212(a) of the Immigration and Nationality Act, they may be eligible for a waiver.
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Waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office, based on a recommendation from the Department of State.
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For additional information related to visa ineligibility waivers, please visit our website: Ineligibilities and Waivers: Laws (state.gov)
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For questions related to waiver approvals, we refer you to the Department of Homeland Security.
Q: How long are current interview appointment wait times for employment-based nonimmigrant visas at overseas posts?
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Currently, interview wait times for H-1B visas are minimal at most of our overseas posts.
Please visit our website to check the current interview appointment wait times for employment-based visas at our overseas posts: U.S. Visas (state.gov)
Q: How will forthcoming edits to the Foreign Affairs Manual (FAM) clarify existing guidance to consular officers?
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Upcoming FAM updates will clarify when consular officers should recommend that DHS grant a waiver of the applicant’s ineligibility, consistent with the waiver process that is already available under existing law to individuals seeking nonimmigrant visas, and consistent with Department regulations that describe the types of cases in which consular officers should consider recommending a waiver of ineligibility. It is not conferring any new benefits and is not limited to DACA recipients.
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These updates will also encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance.
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This will result in certain individuals to potentially more quickly receive work visas if DHS approves a waiver of ineligibility.
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While leaving the United States to apply for a visa is not without risks, this policy will clarify when consular officers should consider recommending waivers, so that individuals and employers can make informed decisions and streamline the process so that those who qualify can get to work quickly.
Q: When will the guidance be issued?
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Updated guidance for consular officers will be issued within the next 30 days.
If you need more information or have any questions call 407-226-3659 to schedule a free consultation at our Orlando or Tampa office.
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