USCIS Announces Temporary Suspension Of Premium Processing For H-1B Petitions

On March 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced it would suspend Premium Processing for H-1B’s for an indefinite period of time beginning April 3, 2017. Premium Processing is expedited processing of a case where the USCIS will render a decision within 15 calendar days upon payment of an additional $1225 filing fee. USCIS stated the suspension could last up to six months in order to focus USCIS resources on the significant backlog of regularly-filed H-1B petitions (with adjudication times exceeding 8 months). Premium Processing will continue for other eligible non-immigrant and immigrant classifications.

The April 3, 2017 start date is significant, as it is the first day of the H-1B lottery primarily for those individuals who have not held H-1B status. Because the number of H-1B petitions has exceeded the annual 85,000 quota (the H-1B “cap”) in past years, there is a lottery held during the first five business days of April. Those H-1B petitions selected in the H-1B lottery will allow the approved foreign national employee to work in H-1B status no earlier than October 1: the first day of the federal government’s fiscal year.

Potential Impacts

Listed below are examples of individuals potentially affected by the suspension of H-1B petition Premium Processing:

• Certain F-1 students with OPT work authorization expiring between the submission of the H-1B petition in April and October 1 would be able to continue working under the “cap gap” rules until September 30. If the H-1B is not approved by September 30, the student would be able to remain in the U.S. but would not be able to work after September 30 until receiving H-1B approval. Travel outside the U.S. while the H-1B change of status is pending would prevent these students from returning to the U.S. to work until the H-1B is approved and an H-1B visa is obtained.
• Individuals who are in the U.S. changing from one non-immigrant classification to H-1B status who do not currently have authorization to work in the U.S. would not be able to begin work until their change of status petition is approved (which could take more than 6 months).
• H-1B employees who change from one employer to another (H-1B portability) will still be able to work in the U.S. Travel abroad prior to the approval of the petition in portability cases is possible but requires preparation.
• Those applying for an extension of their H-1B status would be able to continue working for their employer for 240 days after the end of their previously approved H-1B status while the H-1B petition is pending. Continued work authorization may be allowed if the petition is still pending after 240 days, but the USCIS has not directly addressed this issue. If the H-1B employee travels before the H-1B extension of status is approved, they may be prevented from returning to the U.S. if they do not have a current H-1B visa and their previous H-1B petition approval or I-94 has expired.
• A number of states require approval of an H-1B in order to extend driver’s licenses. Tennessee, however, will temporarily extend driver’s licenses with proof of a pending H-1B petition and other supporting documentation.

Expediting Cases in the Absence of Premium Processing

In certain urgent cases, the USCIS will approve Requests for Expedite on a case-by-case basis. The review is discretionary and the person requesting the expedite must make a compelling case that one or more of the following criteria apply to the beneficiary (the H-1B employee) or the petitioner (the employer):

• Severe financial loss to company or person;
• Emergency situation;
• Humanitarian reasons;
• Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
• Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
• USCIS error; or
• Compelling interest of USCIS.

Domestic requests can be made by contacting the National Customer Service Center at 1-800-375-5283 or by scheduling an InfoPass appointment to the local field office or service center. We regularly assist clients on the gathering and presentation of evidence in support of Requests for Expedite.