Practice Alert – USCIS to suspend premium processing of all H-1B petitions

Last Friday, the United States Citizenship and Immigration Services (USCIS) delivered disappointing news to H-1B employers and beneficiaries alike when they announced the suspension of premium processing for ALL H-1B petitions, beginning on April 3, 2017. And this suspension, unlike in years past, may last a long while – up to 6 months while the agency plays catch-up with long-pending petitions, and awaits what could be the largest number of H-1B cap cases in years.

As described below, this upcoming premium processing pause will have a significant impact not only on the employers and H-1B employees involved, but also on immigration practitioners entrusted to handle their cases and provide advice regarding a wide variety of business decisions.

Here’s what you need to know:

USCIS Suspension of Premium Processing for H-1B Petitions

Cases affected: the temporary suspension will affect ALL H-1B petitions, which include FY 2018 H-1B cap-subject petitions (since earliest file date is April 3rd), cap-exempt cases, extensions, amendments, and H-1B transfers. The USCIS specifically noted that the suspension would not apply to other eligible nonimmigrant classifications for which an I-129 petition is filed (e.g., E-1/E-2, L-1, O-1, TN, etc.)

Filing and fees: During the suspension, the USCIS will automatically reject any Form I-907 which is filed with an H-1B petition, and also reject the underlying Form I-129 as well if the petitioner submits a combined check for both forms.

Pending H-1B petitions: the USCIS will continue to premium process H-1B petitions received before April 3, 2017, and will refund the premium processing fee if they are unable to take adjudicative action on the case within the 15-calendar-day processing period.

Current Processing times: based on the recent processing time reports from the Vermont and California Service Centers, H-1B petitions filed without premium processing can take anywhere from six to nine months before adjudication. The Nebraska service center is currently taking about 3 months for H-1B extensions.

Requesting Expedited Processing: despite the suspension of premium processing, petitioners may still submit a request to expedite an H-1B petition if they are able to demonstrate some compelling justification (e.g., severe financial loss, emergency, humanitarian reason, etc.). The list of expedite criteria can be viewed online, but according to experts, very few cases are expedited.

Potential Impact

Aside from the longer wait times, the suspension of H-1B premium processing may also have significant business and personal ramifications affecting an H-1B employee’s travel schedule, change of employment, and ability to drive in the US (to name a few). Here are some of the areas worth considering:

Travel Abroad: Employees who are currently in H-1B status with an upcoming expiration date will be stuck in the US until their H-1B extension is approved, thus preventing them from traveling abroad for work or pleasure.

H-1B Cap and Alternative Strategies: under normal (ideal) circumstances, petitioners will often file H-1B cap cases under premium processing so they can quickly find out if their employees have won the lottery (so to speak). Without premium processing, employers may need to seriously consider H-1B alternatives sooner rather than later, in the event the employee doesn’t make the cut.

H-1B Extensions: as practitioners know, H-1B extension petitions can be filed no more than six months prior to the expiration of the current petition. If you have clients with expiration dates in mid to late September 2017 and wish to use premium processing, you may wish to use an earlier LCA start date than actually needed so that you can file the H-1B extension before the April 3rd premium processing cut-off date. This means you’ll have to cut the H-1B petition validity short a bit – a tradeoff which may be worth it given the long processing delays.

H-1B Portability: although the regulations permit an H-1B employee who is changing employers to immediately begin work for the new organization upon filing of the petition, many employers and employees like to file the case under premium processing for peace of mind.

Renewing driver’s licenses: as H-1B employees (and families) are painfully aware, many states specifically require an I-797 approval notice for purposes of renewing a driver’s license.

Case Management Tips

Practitioners using a case management system should consider creating reports to proactively manage cases impacted by the H-1B premium processing suspension. Here are a few examples:

  • Show me all FNs in H-1B status with an expiration occurring in the next 6 months who are eligible for an additional extension. This report will help identify those whose travel may be impacted or for whom you should consider “shorting” the LCA date as noted above.
  • Show me all of my FY2018 H-1B cap cases so that I can review alternative strategies (in the event the case is not accepted).
  • Show me all of my H-1B portability cases so that I can evaluate whether the case can be filed earlier (if possible) and to discuss whether the employer and employee will consider filing without premium processing.

Want more information on using an online case management system to prepare H-1B petitions? Please contact us today to learn about the Edge solution from LawLogix.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.