Last Friday U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy.
This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.
The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months:
- H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.
- Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals. and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
- H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
- H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved.
USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.
Please contact Iandoli Desai & Cronin P.C. at email@example.com if you or your organization has any questions regarding timing or if you need assistance in preparing petitions this month.