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:
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:
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:
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:
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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