USCIS Suspending Premium Processing for Cap-Subject H-1B Petitions Until September 10, 2018

On March 20, 2018, the U.S. Citizenship & Immigration Services (USCIS) announced that it will temporarily suspend premium processing for H-1B petitions filed toward this year’s annual cap, the Fiscal Year 2019 cap. This means that all cap-subject H-1B petitions filed with the USCIS between April 2, 2018 and April 6, 2018, including both regular cap and U.S. Master’s cap petitions, will be filed with regular processing, which generally takes several months. The suspension will remain in place until September 10, 2018.

What is Premium Processing?

Premium processing is a USCIS program that provides for a 15-day initial review for an additional fee of $1,225. The request for premium processing is made by filing Form I-907, Request for Premium Processing Service, along with the additional fee. Premium processing can be used to expedite the processing of various immigration filings with the USCIS, largely filed by employers, such as requests for E-1, E-2, H-1B, L-1, TN, O-1, and P non-immigrant visas, as well as certain I-140 Immigrant Petitions for Alien Workers. Premium processing can be requested initially while filing the application or petition or may be requested after the USCIS receives the application or petition while it is still pending.

Who is Affected by the Temporary Suspension of Premium Processing?

Beginning on April 2, 2018, employers will not be able to request premium processing for cap-subject H-1B petitions (received by the USCIS between April 2, 2018, and April 6, 2018), including:

• Regular cap H-1B petitions; and
• U.S. Master’s cap H-1B petitions.

Who is NOT Affected by the Temporary Suspension of Premium Processing?

All remaining H-1B petitions will not be affected by the suspension and will continue to be able to utilize premium processing, including the following:

• H-1B extensions to work for the same employer;
• H-1B amendments to notify the USCIS of a material change in pre-approved; employment with the same employer, such as changes in job location, position, etc.;
• H-1B transfers to port the H-1B from one employer to another employer; and
• Cap-exempt H-1B petitions filed by universities and other cap-exempt employers.

Why is USCIS Temporarily Suspending Premium Processing of H-1Bs?

According to the USCIS, the suspension of premium processing is being implemented in order to help the agency reduce its overall H-1B processing times, which are currently running close to a full year in some cases. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. Many H-1B employers routinely utilize premium processing service, in part because the USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. As a result, the USCIS has apparently dedicated a large amount of resources to adjudicating H-1B applications filed with premium processing, thus neglecting the already delayed H-1B applications filed without premium processing. USCIS has indicated that during this suspension, it will prioritize adjudication of H-1B extensions that have been pending for close to 240 days or longer. Pursuant to regulations, an H-1B employee can continue to work for the same employer while a timely filed H-1B extension is pending, but only for up to 240 days beyond the expiration of their earlier H-1B, resulting in situations where an individual may lack work authorization simply because of USCIS delay.

Is There Anything that an Employer Can Do to Expedite an H-1B During the Suspension?

While premium processing is suspended, employers may still submit a request to expedite an H-1B petition if it meets the following criteria:

• Severe financial loss to the company or person;
• Emergency;
• Humanitarian reasons;
• Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
• Department of Defense or other U.S. government entity, where the delay is detrimental to the U.S. government;
• USCIS error; or
• Compelling interest of USCIS.

Such requests must be submitted with documentary evidence of satisfying the criteria and will be evaluated on a case-by-case basis. In our experience, such discretionary expedite requests are rarely granted.

How Will Employers and Employees Be Affected By the Suspension?

The temporary suspension of premium processing for H-1B petitions will present significant challenges for employers and their H-1B employees, beyond the frustration and uncertainty of waiting many months on a decision. For example, individuals in F-1 status with valid Optional Practical Training (OPT) work authorization on April 2, 2018, but for whom the OPT will expire before October 1, 2018 (the earliest possible start date for a new H-1B), benefit from an automatic cap-gap extension of their OPT until September 30, 2018, if they are the beneficiary of a cap-subject H-1B petition that is either pending or approved. The automatic cap-gap extension of OPT work authorization, however, ends on September 30, 2018. Although the employer will be able to request premium processing for its still pending H-1Bs on September 10, 2018, when the suspension is expected to end, it is still very likely that these H-1Bs will not be adjudicated by October 1, 2018 based on the high rate of Requests for Evidence (RFEs) in the aftermath of President Trump’s Buy American, Hire American (BAHA) Executive Order. Therefore, some F-1 students may be left without any work authorization until the USCIS approves their H-1B unless they are able to secure another form of work authorization while waiting.

If you have questions regarding the impact of the suspension of premium processing for H-1Bs, please contact an attorney at Minsky, McCormick & Hallagan, P.C.