Jul 25, 2017
The Limited Return of H-1B Premium Processing
Joshua H. Rolf
As of July 24, 2017, USCIS will resume accepting Premium Processing for several H-1B Cap-Exempt Petitions. While USCIS’ April 3 suspension of H-1B Premium Processing remains mostly in place, the Service’s decision to resume Premium Processing for this select class of H-1B Cap-Exempt Petitions is a welcome development for universities, teaching hospitals, nonprofit research organizations, and other similarly situated entities.
H-1B Cap vs. H-1B Cap Exempt
As most employers are subject to USCIS’ yearly cap of 85,000 H-1B Visa Petitions, their best (and maybe only) option is to submit an H-1B Petition during the first week of April and hope that it is selected in the H-1B Cap Lottery. However, other employers, largely in the academic, research, and/or medical fields, are statutorily exempt from this quota. As such, they can request new H-1B employment for foreign nationals at any time of the year, without regard for the H-1B Cap. In addition, H-1B Portability Petitions requesting a change of employer, or H-1B Petitions requesting new employment for a foreign national who was counted against the H-1B Cap in the previous six years, are also exempt from the H-1B yearly limits.
Premium Processing and H-1B Cap-Exempt Petitions – Including Employment at Cap-Exempt Entities
For nearly four (4) months, USCIS has forbidden the submission of Premium Processing requests for H-1B Petitions, but recent developments indicate a softening on this stance. First, the Service decided to begin accepting Premium Processing requests for H-1B Petitions filed pursuant to the Conrad 30 Program. Now, USCIS has expanded this grant significantly by reopening Premium Processing to the following H-1B Cap-Exempt Petitions filed by:
- Institutions of higher education (public or private post-secondary academic entities such as universities, colleges, community colleges, etc.);
- Nonprofit organizations that are related to, or affiliated with, an institution of higher learning (e.g. teaching hospitals); and
- Nonprofit research or governmental research organizations.
Moreover, in making this announcement, USCIS confirmed that it will also resume Premium Processing for Petitions wherein the individual will be employed at a Cap-Exempt institution, even if the employer itself is not Cap-Exempt.
Importantly, USCIS’ announcement only lifts the Premium Processing suspension for these select H-1B Cap-Exempt Petitions. As such, USCIS will continue to adjudicate H-1B Portability Petitions and H-1B Petitions submitted on behalf of individuals already counted against the Cap, via Regular Processing.
Future of H-1B Premium Processing Suspension
As indicated above, USCIS’ suspension of H-1B Premium Processing remains largely intact, and is scheduled continue through at least October 1, 2017. USCIS promises to lift the suspension as workloads provide, with accompanying announcements. Accordingly, we will continue to closer monitor ongoing H-1B Premium Processing suspension, and will provide updates as soon as we receive them. If your company has been affected by a shortage of seasonal or peak-load labor needs, contact us today to discuss potential hiring options.