The United States Citizenship and Immigration Services ("USCIS") announced today that it will temporarily suspend its premium processing service for all H-1B petitions subject to the FY2019 cap lottery. The suspension will begin on April 2, 2018, the first day that the USCIS will begin accepting H-1B cap petitions for FY2019, and is expected to last until September 10, 2018. Once the USCIS announces that the suspension has been lifted, petitioners may begin filing premium processing upgrades for pending cap petitions. The USCIS clarified that premium processing will remain available for cap-exempt H-1B petitions, which includes H-1B change of employer ("transfer"), 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 cap-subject H-1Bs to catch up with its current backlog of long-pending H-1B petitions, particularly H-1B extensions that have been pending for nearly 6 months. We note that the USCIS has temporarily suspended premium processing for H-1Bs in the past. Last year, the USCIS temporarily suspended premium processing for nearly six months, affecting all H-1B petition filings, including change of employer, extension, and amendment petitions.
What This Means for Our Clients
The USCIS' abrupt decision to suspend premium processing for this year's H-1B cap-subject petitions may have a negative impact on travel plans for many beneficiaries. Without premium processing, it becomes difficult to estimate exactly when a petition will be adjudicated. Although regular H-1B adjudication will likely take several months, the suspension of premium processing does not necessarily mean that beneficiaries of cap petitions will face a gap in work authorization. Regardless, we recommend that F-1 students eligible for STEM OPT extensions apply early within the eligible filing window.
We will be reviewing all H-1B cap petitions that are being prepared on behalf of our clients and advise if the unavailability of premium processing may require a change in travel plans, or cause other complications. Once the temporary suspension has been lifted, we will notify our clients of all pending cap petitions that are eligible for premium processing upgrades. The hope is that most of the H-1B cap-subject petitions will be adjudicated by September 10, 2018, so that only a minority of pending cases would need to be upgraded.
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 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.