On March 3, 2017, the U.S. Citizenship & Immigration Services (USCIS) announced that it will temporarily suspend premium processing for all H-1B petitions, beginning on April 3, 2017, and that the suspension may last up to 6 months.
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 3, 2017, employers will no longer be able to request premium processing for all H-1B petitions, which includes the following:
USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may also continue to utilize the expedited service, such as E-1, E-2, L-1, TN, O-1, P, and I-140s.
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:
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 almost never 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 following are examples of the various problems that affected employers and employees will almost certainly face as a result of this suspension:
To minimize the risk that the upcoming suspension of premium processing may have on affected employers and employees, we recommend the following:
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.
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.
© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.