US Citizenship and Immigration Services has announced without warning that it will extend its suspension of premium processing for cap-subject H-1B petitions and, beginning September 11, expand it to include additional H-1B petitions normally filed with the Vermont and California service centers.
US Citizenship and Immigration Services (USCIS) stated on August 28 that it will extend its current suspension of premium processing for fiscal year 2019 (FY19) cap-subject H-1B petitions, beginning September 11, to include all H-1B petitions filed at the Vermont and California service centers. USCIS expects these suspensions to last until February 19, 2019, and it will notify the public via the USCIS website before resuming the program for affected petitions. In the meantime, USCIS will continue premium processing of H-1B petitions properly filed before September 11.
The suspension does not apply to the following types of H-1B petitions:
- Cap‐exempt H-1B petitions that are filed exclusively at the California service center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap-exempt institution
- H-1B petitions filed exclusively at the Nebraska service center by an employer requesting a “[c]ontinuation of previously approved employment without change with the same employer” with a concurrent request either to notify a US consulate or inspection facility abroad or extend the status of each beneficiary
The suspension also does not apply to any other nonimmigrant petitions seeking a status other than H-1B filed on Form I-129.
Impact on US Employers and Businesses
The stated goal of the suspension is to help reduce overall H-1B processing times by permitting reviewing officers to prioritize long-pending petitions filed without the premium processing upgrade. However, this comes at a significant cost to employers and beneficiaries who would otherwise be able to rely on the certainty that comes with a guaranteed 15-day turnaround. Other notable impacts include the following:
- Beneficiaries of FY19 cap-subject H-1B petitions currently working pursuant to a “cap gap” extension of their F-1 Optional Practical Training work authorization will lose this protection on October 1 and face a gap in employment until the H-1B petitions are approved.
- Employers and beneficiaries may be more reluctant to take advantage of the H-1B portability provisions that permit employment to start upon the filing of the H-1B petition, as losing the premium processing option for “change of employer” petitions injects additional uncertainty into a process already chilled by increased rates of both requests for additional evidence and denials.
- Despite the noted purpose of clearing out backlogs, combined H-1B extension and amendment petitions (i.e., petitions requesting extensions of H-1B status for the same petitioner along with amendments to the job description) are ineligible for premium processing; consequently, beneficiaries in these circumstances may face gaps in employment eligibility should their automatic 240-day work authorization extensions be reached without approvals.
- Beneficiaries of H-1B change-of-employer petitions who use the portability provisions to switch employers at the time of filing and who do not already have valid H-1B visas will likely face limitations on their ability to travel abroad while their employers’ H-1B petitions are pending.
We will continue to monitor the administration’s efforts to implement a more restrictive immigration policy and pass along any additional developments as they occur.
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