Premium Processing Suspended for H-1B Petitions Beginning on April 3, 2017

uscisUS Citizenship & Immigration Services (“USCIS”) announced late last week that beginning on Monday, April 3, 2017, and continuing for a period of up to 6 months, it will not accept any new Premium Processing requests for a pending or newly-filed H-1B petition. Premium Processing is a filing option offered by the USCIS for designated types of nonimmigrant and immigrant visa petitions whereby the USCIS guarantees review of the petition within 15 calendar days for an additional filing fee of $1,225. It has been become an essential option for employers and highly-skilled workers given the extraordinarily long time the USCIS takes to adjudicate petitions.

What Types of Petitions Are Affected:

This suspension will apply to any H-1B petitions – including cap-exempt petitions – that are received or are pending on or after April 3rd, unless a Premium Processing request is was accepted for processing before April 3rd. Since April 3rd is a Monday, all H-1B-related Premium Processing requests will need to be filed by Thursday, March 30th and received by USCIS no later than Friday, March 31st.

April 3rd is significant because it is also the first date that a new fiscal year (FY) 2018 cap-subject H-1B petition can be filed. This means that no FY 2018 cap-subject H-1B visa petitions can be filed under Premium Processing.

What Types of Petitions Are Not Affected:

All other petition filings with the USCIS for an immigrant or a nonimmigrant benefit for which Premium Processing is available will continue to be able to utilize the Premium Processing service option. Only H-1B Petitions are affected.

Why Is This Happening:

Over the past year, USCIS has fallen significantly behind in its adjudication of H-1B visa petitions, status extensions and amendments. As they have fallen farther behind, more people have converted existing filings to Premium Processing, which has just made the backlogs and delays greater. USCIS hopes that by temporarily suspending Premium Processing for H-1B cases, it will be able to move more quickly through the backlog of old cases and get caught up within a six-month period.
Whether this interim measure is the first act by Trump Administration to make the H-1B visa program unviable remains to be seen.

Cases that Could be Negatively Impacted by this Suspension:

Foreign nationals with a pending H-1B extension or transfer that includes an extension, can continue to work after their existing status has expired and while the extension case is pending for up to 240 days. With the USCIS badly backlogged in the H-1B area, it is becoming increasingly common for foreign nationals to hit this 240-day mark and still not have their case adjudicated. Foreign nationals whose underlying H-1B status has expired and whose H-1B extension request has been pending for a prolonged period of time should work with their employers and consider converting their H-1B case to Premium Processing before March 31st.

Many States now tie the expiration of Driver’s Licenses to the expiration of a foreign national’s visa status. Foreign nationals who reside in a State that follows this rule should consider filing a Premium Processing conversion now if they have a pending H-1B extension and/or are within 6 months of expiration of their status.

Foreign nationals who are planning to travel internationally, and who have a pending H-1B extension and/or are within 6 months of expiration of their status, may want to consider filing for Premium Processing to ensure that they have a new approved period before they travel or should they need to travel for any emergent reason. Similarly, H-1B holders seeking extension of status who have an approved I-140 Immigrant Petition and whose spouses hold H-4 status, may want to consider filing under Premium Processing if the spouse will be seeking an EAD to undertake employment.

Given the short notice and unexpected suspension of this benefit, employers and H-1B employees have important decisions make. The March 31st deadline is fast approaching.

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