U.S. Immigration Updates – Week of December 4, 2023


U.S. Department of State: H-1B Visa Domestic Renewal Pilot Program to Begin In January But Will Not Include H-4 Dependents

A limited number of H-1B specialty occupation workers will be able to renew their visas in the US as soon as January, officials at the U.S. Department of State [DOS] has announced. Starting in January, DOS will allow 20,000 H-1B visa holders to renew their visas in the United States as part of a pilot program. DOS officials say a Federal Register notice in December will provide details on pilot eligibility. The pilot offering domestic visa renewal options to temporary visa holders is still undergoing review at the White House Office of Management and Budget.

Without the domestic renewal option, workers whose visas were expiring have had to get an appointment for a visa stamp at a consulate or embassy abroad, with pandemic-related delays stranding many outside the country for months at a time. Especially high backlogs in countries like India, the biggest source of H-1B workers, are a major headache for workers and their employers.

The DOS’s pilot program to renew H-1B visas in the United States, however, will not include the dependents of H-1B professionals (H-4 visa holders). The decision will likely raise concerns among H-1B professionals with families in America. Although pleased many H-1B employees will be able to renew their visas without leaving the United States, businesses are disappointed spouses and children will be ineligible. Business organizations and their members want DOS to include H-4 dependents when the pilot is expanded or made permanent.

Traveling abroad to renew visas burdens H-1B visa holders and other foreign national employees because of airline costs and potential lengthy waits for visa appointments or processing. With these problems in mind, companies and business groups asked the State Department to include H-4 dependents in the pilot program.

Beyond inconveniences for families, H-4 spouses have become significant economic contributors since a 2015 regulation provided work authorization. An estimated 90,000 H-4 spouses work in the United States, with a high percentage employed in science, technology, engineering and math fields. Therefore, businesses and attorneys hope the visa renewal pilot program will succeed and expand.

SOURCES: Andrew Kreighbaum, “H-1B Worker Domestic Visa Renewal Pilot to Start in January.” Bloomberg News, November 28, 2023: https://news.bloomberglaw.com/daily-labor-report/domestic-visa-renewal-pilot-for-h-1b-workers-to-start-in-january; Stuart Anderson, “State Department H-1B Visa Renewal Pilot Will Not Include Dependents.” Forbes, December 4, 2023: https://www.forbes.com/sites/stuartanderson/2023/12/04/state-department-h-1b-visa-renewal-pilot-will-not-include-dependents/?sh=4df22cba1be0

US Supreme Court: Three Important Pending Cases May Have Impact on Immigration

Three important cases are pending before the U.S. Supreme Court. According to observers, at stake are the legitimacy of the current U.S. immigration court system and the longstanding precedent decision, Chevron v. Natural Resources Defense Council, and its standard for deference to federal administrative agency decisions. The cases include:

  • Securities and Exchange Commission v. Jarkesy, which involves two questions: (1) whether the SEC’s choice of enforcement proceedings violates the nondelegation doctrine, and (2) whether the for-cause removal of administrative law judges (ALJs) violates the U.S. Constitution. Both issues are important for immigration lawyers. For example, observers note, a ruling in favor of Mr. Jarkesy could result in a finding that immigration judges do not have the authority to adjudicate the cases they are assigned. Oral argument in Jarkesy was held on November 29, 2023.
  • Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, which include more expansive challenges to administrative law. Among other issues, the Supreme Court will consider whether to limit or overrule the Court’s 1984 precedent decision in Chevron v. Natural Resources Defense Council. Overruling Chevron would have an impact on federal court challenges to agency decisions from U.S. Citizenship and Immigration Services, the Department of Labor, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection. Oral argument in Relentless and Loper will be held in January.

SOURCE: Potential Game-Changer Cases for Immigration Law at SCOTUS,” AILA thinkImmigration (Nov. 29, 2023).



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