US: USCIS Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions, Effective April 2, 2018
USCIS has announced that it will temporarily suspend premium processing for Fiscal Year (“FY”) 2019 H-1B cap petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This temporary suspension will come into effect on April 2, 2018, when the first FY 2019 H-1B cap cases may be filed, and is expected to last until September 10, 2018. USCIS is temporarily suspending premium processing in order to maintain the processing timelines for other petitions and to prioritize the adjudication of other H-1B case types, including extensions, amendments, and change of employer matters.
During this suspension, USCIS will reject all premium processing requests filed with FY 2019 cap-subject H-1B petitions. Should an employer submit fees for premium processing in conjunction with other H-1B filing fees (combined check), USCIS will reject all fees and the entire H-1B cap petition will be rejected.
While the suspension is in place, an employer may request that USCIS expedite a FY 2019 cap-subject H-1B petition only if it meets one or more expedite criteria, which include severe financial loss to the H-1B employer, humanitarian reasons, and emergency situations. USCIS grants expedited requests on an infrequent and discretionary basis.
During this temporary suspension, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap, including H-1B extensions, amendments, and change of employer petitions.
Employers may request faster processing of their petitions in most categories by utilizing USCIS’ premium processing service. Premium processing allows for a decision to be rendered, or a Request for Evidence issued, within 15 calendar days. The cost for this service is $1225, and is in addition to the filing fees required for each category.
Employers have historically utilized the premium processing service for H-1B cap cases in order to assist them with workforce planning, and also to provide their employees (or prospective employees) with more timely visibility as to their future U.S. immigration status. Since the demand for H-1Bs has often exceeded the allotted annual quotas (in some years by more than threefold), USCIS conducts a random lottery to determine which cases will be selected for adjudication. Although utilizing the premium processing service did not affect the odds of being selected in the H-1B lottery, it allowed for better talent planning in general. Specifically, since employers file H-1B cap cases in April for an October 1 start date, they would utilize premium processing in order to receive decisions on their H-1B cap cases by May or June – rather than waiting until August, September, October, or even later, for a decision to be rendered.
In light of the suspension of premium processing for FY 2019 cap-subject H-1B petitions, H-1B employers should prepare for a longer period of uncertainty regarding the outcome of their H-1B cap petitions, which could cause delays in finalizing their workforce and talent strategies.
In prior years when premium processing has been suspended, USCIS has issued receipt notices for the overwhelming majority of selected cap petitions by June of that filing year. If the coming year is similar to prior years, we can expect that most H-1B employers will have visibility as to their case selection by June, but not as to their final case determination. For those cases that have not been adjudicated by September 10, 2018, it is anticipated that employers will have the opportunity to upgrade those pending cases to premium processing, with the hope of receiving an approval prior to the October 1 start date. Although USCIS has indicated that it expects the suspension to last until September 10, employers should be prepared in the event that the suspension is extended.
H-1B cap beneficiaries (ie employees and prospective employees) will be impacted by the uncertainty of whether they have secured H-1B employment for October 1. Those seeking H-1B visa appointments in September and October may experience delays if their cases are approved near the October 1 start date. Beneficiaries currently in F-1 status and whose optional practical training (“OPT”) will expire before October 1, 2018, should speak to their immigration counsel regarding the ability to continue working in the U.S. during the pendency of the H-1B cap petition. Beneficiaries with H-1B cap petitions filed as a “change of status” should be mindful of longer processing times particularly in the event of international travel plans, as travel abroad can cause the “change of status” aspect of their petition to be deemed abandoned by USCIS. Individuals planning international travel should speak to their immigration counsel regarding any potential impact.
For further details on the suspension of H-1B premium processing for FY 2019 cap-subject H-1B petitions, or on any other immigration matters, please contact a member of our team at PwC Law LLP.