Latest News on Premium Processing for New H-1Bs Filed April 1, 2019 for the FY2020 Cap Season

On March 19, 2019, USCIS announced another change for H-1B cap petitions filed on April 1, 2019. This update relates to the premium processing option.

USCIS will accept premium processing requests concurrently with FY2020 H-1B cap filings but only for those requesting a “change of status” for the prospective employee. USCIS will not actually begin premium processing for those petitions until after data entry processing has been completed for all FY2020 cap petitions. USCIS expects premium processing to begin no later than May 20, 2019. Employers who do not request premium processing concurrently with the change of status H-1B cap petition may request premium processing later but must wait for a further announcement from USCIS before submitting an upgrade request.

Employers are advised to consider the premium processing option for employees who are currently working under F-1 Optional Practical Training (OPT) that expires before October 1, 2019 and who are not eligible for a further STEM extension of their OPT. These employees are allowed to continue working under “cap gap” work authorization while their H-1B change of status petitions are pending, but only through September 30, 2019. If their H-1B petition is not approved by October 1, 2019 (which was the case for many petitions filed last year), the employee must stop working on September 30, 2019.
Note that even if an H-1B Petition is approved quickly with premium processing, the actual change of status to H-1B would not be effective until the October 1, 2019 start date (or possibly later if a case’s processing time happens to run beyond that date). USCIS states that premium processing will be available for other H-1B cap petitions at a later date (i.e. petitions filed with a request for “consular notification”), which will not be until at least June 2019.
It is important to note that premium processing does not affect the chances of a petition being selected for processing under the random selection lottery. USCIS expects to receive more petitions than the available cap on new H-1B petitions so a random selection lottery is highly likely as in past years.
USCIS confirmed a few other changes for this cap season. Under a new regulation, the agency will use a new H-1B cap selection process that reverses the order of the regular cap and advanced degree exemption lotteries, effectively increasing the chance of selection for advanced degree holders. USCIS also announced that a new H-1B Employer Data Hub will be available on its website on April 1, 2019. This will allow the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state or zip code.
Summary: This latest announcement specifies how USCIS will regulate premium processing for the upcoming H-1B cap season. Employers filing H-1B cap change of status petitions should expect that premium processing will not begin until May 20, 2019. Additionally, if an H-1B petition is filed with a change of status request, the candidate must be physically present in the U.S. at the time the H-1B is filed and must remain in the U.S. until approval. Employers filing all other H-1B cap petitions should anticipate that premium processing will not begin until June 2019 or later. McCown & Evans will continue to provide updates regarding the FY2020 H-1B cap as USCIS makes information available.