[NOTE: This is a work in progress and was rushed to completion this weekend. Please add your questions in the comments and let me know if anything here needs to be clarified or corrected. Thanks – Greg]

On March 3rd, US Citizenship and Immigration Services announced that beginning on April 3rd it will suspend for up to six months premium processing on all H-1B petitions.

What is Premium Processing Service?

Since 2001, US Citizenship and Immigration Services (then called the Immigration and Naturalization Service) has offered its Premium Processing Service that allows a supplemental fee to be paid to get a guaranteed faster processing time in many employment-related types of applications. Under the program, USCIS guarantees 15 calendar day processing to those applicants who use the service. That means an application will need to be approved or denied or a request for additional evidence (“RFE”) or a notice of intent to deny (“NOID”) needs to be issued within 15 days. If an RFE or NOID is issued, USCIS’ 15-day clock resets after the agency receives a response from the petitioner or applicant.

Premium processing can be requested by paying a $1225 fee along with submitting Form I-907 and it can be requested at the time of filing the case or “upgraded” later.

 

Why is USCIS doing this?

USCIS claims it is suspending cases in order to be able to concentrate on adjudicating the significant volume of cases in its backlog and to ensure that extension cases are adjudicated within 240 days. Some are also speculating that the suspension is an attempt to “slow walk” the H-1B program and make it less attractive for employers and foreign nationals.

 

What are some of the impacts of the suspension?

There are a variety of situations where the suspension of H-1B premium processing for such a long period will have a negative consequence.

Any employers needing to change an individual from one visa category to another will be impacted. That could especially impact the J-1 waiver program for doctors which gets physicians training in the US on J-1 visas to medically underserved communities across the country. Physicians often can’t complete their J-1 waiver processing until the late spring and depend on premium processing to get to their new communities by their intended July 1st start dates. Hundreds of thousands of patients across the US could potentially have their health care delivery disrupted. Medical and other kinds of scientific research could also be impacted in the same way.

Many states will not extend a driver’s license for a non-immigrant until an extension or change of status application is approved.

Travel is also likely to be disrupted even if individuals are authorized to continue working while a regular processing application is pending (see below).

Finally, because backlogs extend beyond six months for regular processing cases already, many employers and beneficiaries selected in the lottery will not be able to begin work on October 1st as requested unless USCIS improves regular processing times.

 

What is the normal length of H-1B processing if premium processing is not selected?

USCIS processing times for the California Service Center (which covers the western half of the US) show the following as of December 31, 2016:

 

I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Visa to be issued abroad July 2, 2016
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Change of status in the U.S. July 2, 2016
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Extension of stay in the U.S. July 2, 2016

 

USCIS processing times for the Vermont Service Center (which covers the eastern half of the US) show the following as of December 31, 2016:

I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Visa to be issued abroad April 11, 2016
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Change of status in the U.S. April 11, 2016
I-129 Petition for A Nonimmigrant Worker H-1B – Specialty occupation – Extension of stay in the U.S. March 7, 2016

 

What if my case is filed with premium processing, but not completed before April 3rd?

USCIS has indicated that the suspension applies to H-1B petitions filed on or after April 3rd. This should mean that premium processing cases filed before that date will continue to be processed with premium processing even if a decision is not reached on the case until after April 3rd. The April 3rd date was apparently selected because that is the first date that cases may be submitted for the 2018 fiscal year’s allotment of visas.

USCIS also noted that it will refund premium processing fees if it is unable to adjudicate a case within 15 days which has led some to speculate that it may not honor the 15 day time frame for all cases filed before April 3rd and will simply refund fees in cases it chooses not to adjudicate under the premium timeframe.

 

What types of H-1B cases are covered?

All H-1B cases are covered. In past years, USCIS has temporarily suspended premium processing for H-1B extension requests filed during the premium processing period and also stopped premium processing during the lottery selection period. This is the first across the board suspension of H-1B premium processing in history and the longest suspension of H-1B premium processing as well.

 

Can I work for my employer while my H-1B application is processing?

H-1B extension applicants are authorized to work for 240 days while an H-1B extension application is pending. USCIS has been taking more than 240 days for H-1B extensions in recent months but has not clarified its position regarding whether employing individuals beyond 240 days is considered a violation of immigration law.

H-1B non-immigrants can also benefit from portability which allows them to work for a new employer while a change of employer H-1B petition is pending.

Those changing from another non-immigrant category to H-1B status may not begin work for the new employer until an H-1B change of status is approved or an H-1B classification petition is approved and the individual leaves the US, gets an H-1B visa (or, in the case of Canadian nationals, shows an approval notice at a port of entry) and reenters the US in H-1B status.

Some F-1 students on optional practical training may be able to continue working under cap-gap rules which allow one to work with authorization while an H-1B change of status application is pending. Many others won’t be eligible because they do not qualify for cap-gap since it only applies to cases filed in the first week in April.

 

What if I need to travel?

Unfortunately, while many are authorized to work while an H-1B extension or change of status application are pending, reentering the US will require an H-1B approval if the initial visa has expired, the H-1B non-immigrant has not previously received an H-1B visa or the H-1B nonimmigrant’s I-94 has expired. The new policy will disrupt travel in many cases and if travel is considered urgent, an expedite request regarding the H-1B application will be necessary (see below).

 

Is there precedent for USCIS suspending premium processing?

USCIS has suspended premium processing from time to time in past years. However, in the H-1B category, suspensions have been limited to just a few weeks and limited to only a subset of application types. This new announcement represents a much broader suspension than at any time in the 16-year history of the premium processing program.

 

Is there a way to get my case expedited if I’ve got a good reason?

USCIS has a process to request expedited processing in urgent cases and will approve such requests on a case-by-case basis. USCIS has stated that the requester has the burden of documenting one or more of the following[1] apply to the petitioner or the beneficiary:

  • 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 n ational i nterest s ituation (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.

To request an expedite, petitioners should contact the National Customer Service Center (NCSC) at 1-800-375-5283 and the NCSC will forward the request to the USCIS Service Center adjudicating the case. Expedites can also be requested via the InfoPass appointment system at local USCIS offices or via writing a letter to the field office or service center. If a person is overseas, the request should be made directly to the USCIS office with jurisdiction over the petition. If you are a Siskind Susser client, your lawyer will submit this request on your behalf.

 

If I filed my H-1B case before April 3rd using regular processing, can I upgrade to premium processing after April 3rd?

No. USCIS has indicated that it will only premium process cases if an I-907 was submitted before April 3rd.

 

 

 

 

[1] https://www.uscis.gov/forms/expedite-criteria

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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