On March 3, USCIS unexpectedly announced the temporary suspension of premium processing service for all H-1B petitions filed on or after April 3, 2017. Premium processing is a USCIS program that provides for a 15 day initial review in exchange for a $1,225 filing fee. USCIS has indicated that this premium processing suspension may last for up to six months.
The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This includes extension and amendment petitions. Further, since new cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed under the fiscal year 2018 H-1B regular and master’s degree caps. The suspension also applies to petitions that may be cap-exempt, such as those filed by universities and other cap-exempt employers.
USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may continue to utilize the expedited service.
Why Did USCIS Make This Surprise Announcement?
According to USCIS, this suspension of premium processing is being implemented in order to help reduce overall H-1B processing times, which are currently running close to a full year in some instances. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. USCIS will also prioritize processing of H-1B extension petitions that are nearing 240 days pending, since the automatic extension of employment authorization only lasts for 240 days after the prior petition expiration.
Are There Any Exceptions?
During the premium processing suspension, petitioners may still request expedited processing if they meet certain criteria. USCIS reviews expedite requests on a case-by-case basis and requests are granted at their discretion. USCIS may expedite a petition or application if it meets one or more of the following criteria:
- 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.
In our experience, expedite requests are rarely granted.
What Is The Practical Impact For Companies and H-1B Employees Who Need Extensions in 2017?
Many H-1B employers routinely utilize premium processing service, in part because USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. Lengthy H-1B processing times during the unavailability of premium processing will present the following significant challenges:
- Many H-1B employees will lose the ability to travel for business or pleasure because they will be unable to obtain a new visa to reenter the U.S. without an extension approval notice;
- H-1B employees and their H-4 spouses may be unable to renew driver’s licenses;
- H-1B employees seeking to change employers will either have to resign their current position and “port” to the new employer using the filing fee receipt from the new employer’s H-1B petition (without the certainty of an approved petition) or wait many months for the new employer’s petition to be approved.
Zulkie Partners will be working closely with clients to minimize the disruption caused by the sudden policy shift at USCIS.
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