USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions Starting April 3, 2017

With a goal of reducing the processing times for all H-1B petitions, U.S. Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend premium processing for H-1B petitions filed (i.e. received by USCIS) on or after April 3, 2017. Premium processing will not be suspended for other nonimmigrant visa categories that are eligible for premium processing, or for H-1B petitions filed (i.e. received by USCIS) before April 3, 2017. This suspension may last up to six months. USCIS will issue a new public notice before it resumes premium processing for H-1B petitions.

What Does This Mean for H-1Bs Filed Under the 2018 Fiscal Year Cap? 
The USCIS announcement means that premium processing will be unavailable for ALL H-1B cap petitions filed under the 2018 Fiscal Year cap, since the first day that these petitions can be filed with USCIS is April 3, 2017. This means that all cap-subject H-1B petitions filed in 2017 must be filed under the regular processing service. There are two practical implications of this fact:
First, receipt notices for H-1B petitions that are selected for processing will be issued and received more slowly than they would have been under the premium processing service. This means that there will be a longer period of time during which we are uncertain as to whether a case has been selected for processing under the lottery. Regular H-1B cases are receipted more slowly and the notices are delivered by U.S. mail. Last year receipt notices for non-premium processing cases started to arrive in early May, which was approximately two weeks after the premium processing cases.
Second, travel will be restricted for post-graduation F-1 students who will need “Cap-Gap” employment authorization over the summer of 2017. Cap-Gap employment authorization is for recent university graduates with Optional Practical Training (OPT) Employment Authorization Documents (EADs) that will expire between April 1, 2017 and October 1, 2017. Under the “Cap-Gap” rules these individuals receive an automatic extension of employment authorization through September 30, 2017 by having an H-1B change of status petition pending with USCIS.
An F-1 student may generally travel abroad and seek readmission to the United States in F-1 status during a Cap-Gap period if:
  • The student’s H-1B petition and request for change of status has been approved;
  • The student seeks readmission before his or her H-1B employment begins (normally at the beginning of the fiscal year, i.e., October 1); and
  • The student has both a valid F-1 visa and I-20 documents and is otherwise admissible.
If a person in this situation travels after the H-1B petition is filed but before it is approved, they abandon the request for change of status and they lose Cap-Gap employment authorization. USCIS will continue to process the H-1B petition, but the individual will lose the extended employment authorization and lawful status provided under the Cap-Gap rules. They will need to wait outside the United States until their H-1B petition becomes valid on October 1, 2017. H-1B visa holders may enter the United States 10 days prior to the start of work, so people in this situation would be able to enter the United States on September 20, 2017, but would not be permitted to begin work until October 1, 2017.

In past years, we used premium processing for people who needed Cap-Gap coverage and who expected to travel over the summer. This will not be possible this year if the suspension of premium processing remains in place.

What Does This Mean for H-1B Filings that are Not Cap-Subject?
H-1B Extensions of Status
All H-1B extensions filed on or after April 3, 2017 must be filed with regular processing. Currently, H-1B extension of status petitions are being processed through regular processing service in about 3 months at the Nebraska Service Center, which has been designated for these types of H-1B petitions. In the meantime, the requirement to file H-1B extensions with regular processing can have a variety of effects.
  • Maintenance of Status and Work Authorization
If an H-1B extension of status petition is properly filed prior to the expiration of a person’s current H-1B status, then the person remains in lawful status while the case is processed. The person also receives an automatic 240-day extension of employment authorization. Since the suspension of premium processing should be in place for a maximum of 6 months, the 240-day extension of employment authorization should be sufficient to cover all cases since the current processing time for these cases is about 3 months. Therefore, it is very unlikely that the suspension of premium processing will jeopardize the lawful status or employment authorization of current H-1B holders.
  • Travel
To renew an H-1B visa seal at a U.S. consulate, a person must first obtain an I-797 approval notice. Until premium processing is reinstated, the processing times for H-1B extensions will remain uncertain. It is therefore important to file H-1B extensions six months prior to the expiration of the current H-1B status, which is the earliest that an H-1B extension may be filed. Also, it will be risky to plan travel that will require a visa extension until after the H-1B extension is approved.
  • Driver’s License Renewal
Many states limit the duration of driver’s licenses to the validity period of a person’s visa status. H-1B status holders should file H-1B extension petitions six months prior to their status expiration to ensure that they are able to renew driver’s licenses prior to their expiration.
H-1B Changes of Employer
Under the H-1B “portability” rules, a nonimmigrant worker previously issued an H-1B visa or otherwise accorded H-1B status may begin working for a new H-1B employer as soon as the new employer files an H-1B petition for the worker. Portability work authorization is not available to anyone who has been employed without authorization since his or her last lawful admission to the United States. Under the H-1B portability authorization rules, workers will still be able to change jobs freely and in a timely manner even though the final approval of the change of employer H-1B petition may happen more slowly under regular USCIS processing.

In the past, many people who have changed from one H-1B employer to another have opted to wait until the new petition is approved before leaving their current job. In these situations, employers typically filed the new H-1B petitions with premium processing. While the suspension of premium processing remains in effect, H-1B workers who change jobs must either ask the new employer to wait for the processing of the normally-filed H-1B petition or change jobs under the portability rules before the change of employer H-1B petition is approved.

Can an H-1B Petition be Expedited Under Some Circumstances?

Even though premium processing has been temporarily suspended, USCIS will continue its policy of allowing H-1B petitioners to request expedited processing under some limited circumstances:

  • 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 United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS.

USCIS reviews all expedite requests on a case-by-case basis and the requests are granted at its discretion.

If you have questions about the USCIS suspension of premium processing for H-1B petitions, please contact your immigration attorney at McCown & Evans.