USCIS Suspending Premium Processing for All H-1B Petitions on April 3, 2017 for up to 6 Months

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:

• 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
• Cap-subject H-1B petitions for the 2018 H-1B cap (regular and U.S. Master’s cap)
• Cap-exempt H-1B petitions filed by universities and other cap-exempt employers

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:

• 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 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:

• 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 extension and who need a new H-1B visa will need to delay their travel abroad for many months.
• 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 extension may be unable to timely renew their Driver’s License.
• Gaps in Work Authorization:
  • As mentioned earlier, regulations permit an H-1B employee to continue working for the same H-1B employer for up to 240 days beyond the expiration of H-1B status while a timely-filed H-1B extension is pending. Although the USCIS has indicated that it will prioritize H-1B extensions that are nearing the 240-day mark, there have already been instances of H-1B extensions that are pending beyond the 240-day mark, leaving such H-1B employees without lawful work authorization. The suspension will inevitably create more instances of such gaps in work authorization.
  • Individuals in F-1 status with valid Optional Practical Training (OPT) work authorization on April 3, 2017, but for whom the OPT will expire before October 1, 2017 (the earliest possible start date for a new H-1B), benefit from an automatic cap-gap extension of their OPT until September 30, 2017 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, 2017, so these individuals will be left without any work authorization until the USCIS approves their H-1B (or they are able to secure another form of work authorization while waiting).
  • H-4 spouses of H-1B employees may apply for an Employment Authorization Document (EAD) work authorization card if their H-1B spouse is the beneficiary of an approved I-140 or a post 6^th year H-1B extension. In such cases, the H-4 spouses will experience delays in obtaining or renewing such EADs because the USCIS must first approve the H-1B petition before approving the EAD for the H-4 spouse. While new regulations permit the automatic extension of certain EADs for 180 days while an EAD extension is pending, there will likely be cases where a new EAD is not issued within the 180 day automatic extension because the USCIS is taking close to 1 year to adjudicate many H-1B extensions.

Recommendations

To minimize the risk that the upcoming suspension of premium processing may have on affected employers and employees, we recommend the following:

• File H-1B extensions as early as possible, preferably a full 6 months prior to the expiration of H-1B status.
• Request an upgrade to premium processing before April 3, 2017 for H-1B extensions filed on behalf of individuals who need to travel abroad and need to apply for new H-1B visas at a U.S. Consulate.

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.