The announcement from the US Citizenship and Immigration Services came as a surprise and could create significant uncertainty for H-1B petitioners and the beneficiaries of cap-subject H-1B petitions.
The US Citizenship and Immigration Services (USCIS) announced on March 20 that it will suspend premium processing for all H-1B petitions that are subject to the Fiscal Year (FY) 2019 numerical cap. Premium processing is a service offered by USCIS that reduces the processing time of certain nonimmigrant and immigrant petitions to 15 calendar days. Such cap-subject H-1B petitions may be filed during the first five business days of April 2018 for an employment start date of no earlier than October 1, 2018. USCIS estimates that this suspension will last until September 10, 2018, or three weeks before the anticipated employment start date for most beneficiaries of these petitions (although it is possible that the suspension will end earlier). A public announcement will be made by USCIS before premium processing is resumed for cap-subject H-1B petitions. Once premium processing is restored, H-1B petitioners will presumably be able to interfile Forms I-907 (the request for premium processing) with petitions that are pending with the USCIS.
H-1B petitions that are not subject to the H-1B cap (i.e., petitions filed for beneficiaries that have already been counted against this cap) will continue to be eligible for premium processing, as will petitions seeking classification in another nonimmigrant category, such as L-1.
USCIS indicates that, during this temporary suspension, it will reject any Form I-907 that is included in an H-1B petition that is subject to the FY 2019 cap. It is not clear if the entire H-1B petition will be rejected, or solely the request for premium processing, but petitioners are advised to err on the side of safety and not include a Form I-907 in their petition packets. The USCIS also notes that, if a petitioner submits a single combined check for the fees for Form I-907 and Form I-129, the H-1B petition, it will reject both forms.
The USCIS asserts that its decision to suspend premium processing was taken to enable it to process “long-pending” petitions and to prioritize the adjudication of H-1B extension of status petitions that are nearing the 240-day extended employment authorization (for persons with timely filed extension petitions) mark.
Although premium processing for cap-subject H-1B petitions will be suspended until September 10, 2018, it will be possible to request the expedited processing of such petitions if the agency’s criteria for expedited processing (including severe financial loss to company or person, an emergency situation, humanitarian reasons, USCIS error, or a compelling interest of USCIS) are met. Such requests will only be granted in exceptional circumstances.
The March 20 announcement came as a surprise; USCIS had indicated in a teleconference on the cap-subject H-1B petition filing process last week that it would temporarily suspend premium processing for cap-subject H-1B petitions, but it had been expected that the suspension would take effect only after the filing of such petitions and would not last as long as five-and–a-half months. The suspension of premium processing will create significant uncertainty for H-1B petitioners and the beneficiaries of cap-subject H-1B petitions, since it may take several months to receive a decision or even a request for evidence on these petitions. H-1B beneficiaries who are in F-1 status and whose Optional Practical Training (OPT) expires between the filing of the H-1B petition in April and October 1 will continue to be eligible for a “cap-gap” extension of OPT, however. The suspension of premium processing will also affect persons seeking H-1B status who had planned to travel outside the United States between the beginning of April and October. If the H-1B petitions filed for such persons seek a change of status, it is advised that all international travel be avoided until the petition and change of status application have been approved. Without premium processing, it will take much longer to receive such an approval, and such persons will have to postpone their travel plans until approval notification is received from the USCIS.
If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:
A. James Vazquez-Azpiri