United States: USCIS suspends H-1B Premium Processing effective April 3, 2017

Posted by Immigration Law Team|US Immigration
Mar 17
5


In Brief

USCIS has announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium processing is the mechanism by which an H-1B petition can be adjudicated within 15 calendar days, which can shave months off the normal adjudication processing time, for an additional governmental filing fee of $1225.

Discussion

The H-1B category is used by employers who wish to hire foreign workers in specialty occupations who hold at least a Bachelor’s degree or equivalent, and who will be working in a position which typically requires at least a Bachelor’s degree. Under normal processing times, H-1B petitions typically take between two and six months to adjudicate. Currently, an employer can request premium processing of any H-1B petition, which requests that USCIS render a decision, or a Request for Evidence, within 15 calendar days. H-1B employers use premium processing for several different reasons. For H-1B cap cases that are filed no sooner than April 1 for an October 1 start date, premium processing typically allows for an employer to know whether the H-1B petition has been approved by May or June – rather than waiting until August, September, October, or even later, for a decision to be rendered. Employers opt for premium processing in order to have better visibility as to which of their H-1B cap cases have been approved, for workforce planning purposes.

This year, the first day that employers can file H-1B cap cases is April 3, 2017. By choosing April 3, 2017 as the start date for the suspension of H-1B premium processing, USCIS has indicated that H-1B cap cases are not eligible for premium processing this year. Please note that premium processing does not affect selection in the H-1B lottery. For employees who are currently working for a US employer in H-1B status, premium processing allows for them to quickly know whether their extension petitions have been approved, often prior to their current H-1B expiration date. For H-1B workers who are looking to change employers, premium processing of H-1B change of employer petitions allows for employees to have certainty whether their cases have been approved before starting work with the new employer. All in all, premium processing of the H-1B category has been extremely useful to employers and employees alike, both from a workforce planning perspective, as well as for rapidly providing employees with certainty as to their immigration status.

Impact

In light of the above, the suspension of H-1B premium processing will have a negative impact on both employers and employees. Employers will be delayed in knowing whether or not their H-1B cap and extension cases have been approved, which can cause challenges in workforce planning. From the employee perspective, employees often need an approved H-1B petition in order to obtain driver’s license renewals, and to obtain new H-1B visas at Consular Posts abroad. Without the ability to premium process cases, employees could be left without the ability to drive to work and may have to postpone international travel plans until a later date, if they were relying on premium processing for speedy adjudications. Finally, those with otherwise approvable pending H-1B extension petitions are only authorized to work for 240 days beyond their H-1B status expiration date.

Although USCIS has indicated the temporary suspension is to assist with the adjudication of cases nearing the 240 day mark, by removing the ability of employers to upgrade cases nearing the 240 day mark to premium processing, some employees may have to cease employment until their H-1B cases are approved, which will cause disruption to both employers and employees.

For more information on the suspension of H-1B premium processing, please contact PwC Law LLP.


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