USCIS Expands Premium Processing Suspension for Many H-1B Petitions, Hurting Business & Foreign Employees

On March 20, 2018, the U.S. Citizenship & Immigration Services (USCIS) announced that it would temporarily suspend premium processing for H-1B petitions filed toward this year’s annual H-1B cap, and anticipated that the suspension would expire on September 10, 2018. Last week, the USCIS announced that beginning tomorrow, September 11, 2018, it would instead continue the suspension of premium processing for these cap cases and expand it to other H-1B cases until at least February 19, 2019.

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, R-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 Expanded Suspension of Premium Processing?

Beginning on September 11, 2018, employers will not be able to request premium processing for the following types of H-1B petitions filed with USCIS:

• Regular cap H-1B petition filed with USCIS between April 2-6, 2018 & counted in this year’s lottery;
• U.S. Master’s cap H-1B petition filed with USCIS between April 2-6, 2018 & counted in this year’s lottery;
• 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 individual from one employer to another employer.

These H-1Bs will be processed based on the USCIS current processing times, which currently average between 5.5 months to 7.5 months, but vary greatly case-by-case.

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

Only the following H-1Bs will continue to be able to utilize premium processing until February 19, 2019:

• H-1B extensions to work for the same employer without change, filed with the Nebraska Service Center;
• Cap-exempt H-1B petitions filed by universities and other cap-exempt employers.

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. The announcement significantly inhibits mobility in the workplace and will inevitably hurt both employers and employees, such as in the following scenarios:

1. Cap-Gap Work Authorization Ending for F-1 Students on September 30, 2018: Individuals in F-1 status with valid Optional Practical Training (OPT) work authorization on April 2, 2018, but for whom the OPT has expired or 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. Since most of these cap-subject H-1Bs continue to be pending the USCIS, and many will receive Requests for Evidence (RFEs) based on the high rate of Requests for Evidence (RFEs) in the aftermath of President Trump’s Buy American, Hire American (BAHA) Executive Order, many F-1 students will be left without any work authorization until the USCIS approves their H-1B, possibly months later.
2. Delays in Start Dates for H-1B Transferring Employees: Individuals already in H-1B status are legally permitted to start working for a new H-1B employer as soon as an H-1B transfer is filed with the USCIS. There has been a significant increase in H-1B RFEs and denials in the aftermath of the BAHA Executive Order, and as such, H-1B workers are understandably nervous and hesitant to start working for a new employer until their H-1B transfer is actually approved. This now means that employers will likely have to wait many months before these new employees can begin working.
3. Delays in Travel Abroad: H-1B employees (except for Canadians) must have a valid H-1B visa stamp in their passports in order to return to the U.S. from trips abroad. To apply for an H-1B visa at a U.S. Consulate abroad, the employee must present a valid H-1B Approval Notice from the USCIS. Individuals who are waiting on an H-1B approval and who need a new H-1B visa will need to delay their travel abroad for many months.
4. Problems Renewing a Driver’s License: In most states, an individual in H-1B status must present a valid H-1B Approval Notice in order to renew their Driver’s License. Individuals who are waiting on an H-1B approval may be unable to timely renew their Driver’s License.

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.