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Mar 6, 2017

USCIS to Suspend Premium Processing for H-1B Petitions

Jonathan A. Grode

On Friday, March 3, the U.S. Citizenship and Immigration Services (USCIS) announced that, effective April 3, 2017, it would suspend Premium Processing Service for all H-1B Petitions, and that the service could be suspended for as long as six months.  Use of the Premium Processing Service guarantees initial adjudication of the petition (approval/request for evidence/denial) within 15 calendar days for an additional filing fee of $1,225. It also provides a few secondary benefits, including the ability to call or e-mail the USCIS Service Center Directly regarding a case, and, in some cases, to send and receive information via fax.

Petitions which are filed via Premium Processing prior to this date will continue to be adjudicated under the normal timeframe. USCIS also made a point in its announcement to note that, per normal Premium Processing regulations, petitions which are pending for more than 15 calendar days will receive a refund of the $1,225 filing fee.

Impact on FY 2018 Cap Season

Importantly, this change in policy is timed to coincide with the first date that petitions subject to the FY 2018 H-1B Cap will be accepted (April 3), meaning that the Premium Processing option will not be available to those seeking new H-1B classification this season. While this change in policy does not necessarily have a direct practical impact on many of the individuals who will be filing for this classification (normal rules regarding “Cap Gap” employment authorization and other changes of status will apply), it does mean that foreign nationals will need to wait longer to learn whether or not their petitions were selected, and whether or not they were approved.

In some cases, foreign nationals who do require an approved H-1B petition to commence or continue employment (such as those who are currently abroad at the time of filing) may find themselves subjected to delays in arriving or commencing employment if their petition is not adjudicated before October 1, the earliest date on which cap-subject H-1B employment can begin.

 In addition, it is worth noting that the use of the Premium Processing service does not increase one’s odds in the H-1B cap “lottery,” meaning that individuals’ ultimate chances of selection this year will not be impacted one way or another by this change.

Impact on Non-Cap H-1Bs

This change will not impact the ability of most H-1B holders to continue to live and work in the United States- most extension of stay, amendment, and change of employer (“portability”) filings enable the beneficiary to, at least temporarily, secure the benefit being sought upon receipt by USCIS and do not require an approval. However, individuals seeking to travel outside of the United States who also require the approval of a pending petition may have their planned travel significantly impacted and may not be able to do so until the petition is approved.

For Non-Cap subject employers, such as Universities and affiliated medical facilities, the lack of premium processing will cause significant delay in your ability to hire foreign nationals in H-1B classification who have not previously held this status. Standard processing times are approximately 4 to 6 months for filings of this nature.

Significantly, USCIS has indicated that it will consider expedite requests for these filings in emergent circumstances. (Historically, although technically available, USCIS has not been receptive to these types of requests due to the availability of the Premium Processing option.) Expedite requests are typically associated with the possibility of some form of significant harm to the petitioner or beneficiary (such as life-or-death emergencies, possibility of significant financial losses, or other compelling interest), and thus are unlikely to be granted for most filings, even if some loss or inconvenience is possible, and thus it should not be assumed that they will be granted in most cases.

Impact on Other Classifications

Finally, as it stands now, this change is limited to petitions seeking H-1B classification and does not impact USCIS posture regarding other filings one way or another. While this stance could change at a later date, USCIS has given no indication that it intends to do so.

Is this part of the new administration’s larger focus on immigration enforcement?

Despite a number of media outlets noting that this action is coming at the direction of the new presidential administration (technically true, as USCIS is part of the executive branch) on account of the President’s past critical comments towards the H-1B classification, this change is likely unrelated to some of the other efforts by the Executive Branch to change U.S. Immigration policy. In reality, the H-1B classification has been subjected to significant processing backlogs since early 2016, with the Vermont Service Center listing processing dates as far back as March 2016 as of today’s date (March 6, 2017). USCIS has actually taken a number of steps to reduce this workload in the past year, most notably moving the processing of certain types of H-1B petitions to the Nebraska Service Center in Summer 2016. Unfortunately, but perhaps not surprisingly, long H-1B wait times have led to more petitioners opting to use the Premium Processing Service, which in turn, increases the Premium Processing workload. Thus, the current action should likely be seen as a response to longstanding workload problems, not as a precursor to major changes in the H-1B program.

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