The premium processing suspension will begin on April 3, 2017.
US Citizenship and Immigration Services (USCIS) has announced that premium processing of all H-1B petitions (including those subject to the Fiscal Year 2018 H-1B cap or quota) will be suspended temporarily as of April 3, 2017. Premium processing service—requested by filing form I-907 and paying a $1,225 filing fee—guarantees a 15-calendar-day processing of certain employment-based petitions. USCIS has stated that the suspension of premium processing is intended to reduce overall H-1B processing times.
This suspension will have the following effects:
- As mentioned above, no H-1B filed under the Fiscal Year 2018 H-1B cap may be filed with a premium processing request. Businesses often prefer to use premium processing for cap-subject H-1B filings in order to determine at the earliest possible time whether a petition has been selected—and subsequently approved—under the cap, in order to facilitate business planning. It appears that this will not be possible this year.
- H-1B transfer petitions (petitions allowing movement from one H-1B employer to another) filed after April 3 may not be processed with premium processing. Under “H-1B portability” principles, H-1B workers who have maintained valid status with a current employer may transfer to a new employer upon the receipt of an H-1B transfer petition filed by the new employer. Therefore, even if an H-1B transfer petition is subject to lengthy adjudication, H-1B portable workers may begin to work for the new employer prior to adjudication. Moreover, under current USCIS policy, in general, portable H-1B workers with valid H-1B visas may travel with the previous employer’s valid H-1B visa and a filing receipt for the new petition. However, lengthy adjudications will make it difficult for those H-1B workers who transfer to new employers and wish to travel abroad to apply for H-1B visas under the new employer’s name.
- H-1B extension petitions may be filed up to six months prior to expiration of current period of stay. H-1B extension petitions filed after April 3 may not be processed under premium processing. Under current regulations, H-1B workers who have timely filed extensions pending may continue to work for 240 days beyond the expiration of the current H-1B status. However, lengthy adjudications of H-1B extension petitions may impact the ability of an H-1B worker to renew a driver’s license, as some states do not accept a filing receipt as proof of lawful status. Lengthy adjudication of H-1B extension petitions may also impact the ability of an H-4 spouse to obtain or extend employment authorization in certain circumstances.
- Any pending H-1B petition could be “upgraded” to premium processing when USCIS lifts the suspension.
H-1B premium processing petitions filed prior to April 3 that have not been adjudicated within the 15-calendar-day processing period will continue to be processed with premium processing. If an H-1B matter is filed with USCIS after April 3 with a request for premium processing, USCIS will reject the I-907 form but will continue to adjudicate the petition under regular processing.
This temporary suspension of premium processing does not apply to other eligible nonimmigrant petitions filed on Form I-129 (such as TN or L-1). Note that USCIS will continue to accept requests for expedited processing if they meet the standard criteria for expediting—such as severe financial loss, humanitarian reasons, or other emergencies. All expedited requests are granted at the discretion of the USCIS.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Eric S. Bord
Lisa Stephanian Burton