The United States Citizenship and Immigration Services ("USCIS") announced today that it will temporarily suspend its premium processing service for all H-1B petitions filed on or after April 3, 2017. The suspension will affect H-1B petitions subject to the FY2018 “cap,” along with H-1B change of employer, extension, and amendment petitions.
Premium processing is an expedited service available for certain employment-based petitions whereby the USCIS guarantees review within 15 calendar days. By regulation, the USCIS may suspend premium processing for any visa category by publishing notice in the Federal Register. The USCIS advised that it is suspending premium processing for H-1Bs to catch up with its current backlog of long-pending H-1B petitions, and that the suspension may last for up to six months. We note that the USCIS has temporarily suspended premium processing for H-1Bs in the past. Most recently, it was suspected for extensions filed from May 2015 to July 2015. The March 3, 2017 announcement is notable for covering the whole range of H-1B filings.
What This Means for Our Clients
The USCIS' abrupt decision to suspend premium processing will have a negative impact on the ability of employers to onboard new H-1B workers quickly, and may also interrupt travel plans for many foreign workers. Without premium processing, current adjudication of H-1B petitions is abysmally slow. Change of employer petitions, for example, are taking approximately five months. Paradoxically, the slow "regular" processing times have led to the increasing demand for premium processing, which has led to the USCIS’ decision to suspend its faster service.
Although regular H-1B processing times are very slow, the suspension of premium processing does not necessarily mean that foreign workers will have to wait several months to change employers, or that beneficiaries of cap petitions will face a gap in work authorization.
H-1B Cap Petitions. Because H-1B cap petitions selected in the cap lottery lottery do not go into effect until October 1, 2017, the unavailability of premium processing is unlikely to impact the start date for most H-1B cap petitions. However, F-1 students whose EADs are expiring over the summer, and who are also planning on overseas travel over the summer, may need to adjust or cancel their international travel plans to avoid a gap in work authorization. We will be reaching out to all F-1 students individually who are in this situation.
H-1B Change of Employer (“Transfer”) Petitions. In most cases involving change of employer H-1B petitions where the foreign worker is already employed in the U.S. in H-1B status, the worker may start at the new employer upon receiving the receipt notice for the H-1B petition filed by the new employer. Without premium processing, it generally takes 2-3 weeks to obtain this receipt notice.
H-1B Extension Petitions. For timely filed H-1B extension petitions, work authorization is automatically extended for up to 240 days beyond the current expiration date, so long as the worker does not leave the country. If the person leaves, the individual must return to the U.S. before status expiration, or would otherwise not be able to return to the U.S. until the extension is approved. We will be reaching out to all H-1B workers for whom we are preparing extensions to discuss the impact of the suspension on their travel plans.
Expedited Processing. Where necessary, we will also assist clients with an "expedite request" in lieu of premium processing service. Expedited processing is a discretionary service, and requires a showing that one of the following criteria is met:
Severe financial loss to company or foreign national;
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
USCIS error; or
Compelling interest of USCIS.
It is likely that the Service will be inundated with such requests, and will only approve a small number.
We will be reviewing all of H-1B petitions that are being prepared on behalf of our clients. Where possible, we will file the petitions before the suspension takes effect. For H-1B cap petitions, and other petitions that cannot be filed before April 3, 2017, we will advise each client if the unavailability of premium processing may require a change in travel plans, or cause other complications.
We note that the immigration bar, employers and other stakeholders will likely be putting significant pressure on the USCIS to rescind its suspension of premium processing, and there is some possibility that today’s announcement will be withdrawn or modified. We will update you as more information becomes available.