Aug 29, 2018
USCIS Extends, and Expands, Suspension of H-1B Premium Processing
Joshua H. Rolf
USCIS announced today that its suspension of Premium Processing for Fiscal Year 2019 H-1B Cap Petitions will be extended through at least February 19, 2019. Originally slated to resume in about two weeks, USCIS advised of this extension while also announcing an expanded suspension of H-1B Premium Processing. Specifically, starting September 11, 2018, USCIS also will not accept Premium Processing for an H-1B Petition unless the filing is statutorily cap-exempt, or if the Petition requests a continuation of previously approved employment without change – whether the employee is present in the United States and seeking an extension of stay, or if he or she is presently outside the United States and will need to apply for a Visa to return. For all other H-1B Petitions – including Amended H-1B Petitions, H-1B Portability Petitions, and new employment for H-1B employees abroad – Premium Processing will not be available until at least February 19, 2019. Expedited Processing will remain an option in limited circumstances.
USCIS cited several reasons for its decision to extend and expand its suspension of H-1B Premium Processing, all of which look familiar: a back-log of pending Petitions due to an increase in Premium Processing requests, as well as the need to process H-1B Extension Petitions that are approaching the 240-day limit and other H-1B Petitions with “time-sensitive start dates.” These reasons are at odds with the fact that H-1B Cap Petitions, many of which remain pending as of publications, also have “time-sensitive start dates” of October 1, 2018, yet will not have access to Premium Processing. Likewise, H-1B employees located abroad and seeking to re-enter on a new H-1B Petition will also face delays when seeking admission to the United States.
Instead, the extension/expansion is conveniently timed with USCIS’ implementation of its recently-published Policy Memorandum. USCIS’ new policy will give the agency greater latitude to deny any application, petition, or request for an immigrant or nonimmigrant benefit – such as H-1B – without first issuing a Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”). With the expanded suspension, USCIS will also have more time to decide these cases.
According to USCIS’ announcement, the Service will continue to accept Premium Processing for H-1B Petitions for which the service is presently available, and return filing fees for requests that are not met within the 15-calendar-day processing period, so long as the Premium Processing request arrives on or before September 10, 2018. Accordingly, there remains time to prepare and submit an H-1B Petition using Premium Processing, or upgrade a pending H-1B Petition, if it will soon become subject to the Premium Processing suspension.
If you would like our Firm’s services regarding a Premium Processing filing, or have any questions regarding whether your Petition falls under the soon-to-be-expanded suspension, please do not hesitate to contact our office.