Starting May 26, USCIS will temporarily suspend the 15-day premium processing service for all H-1B Extension of Stay petitions until July 27 to allow it to implement the H-4 Employment Authorization Document final rule in a timely manner.
US Citizenship and Immigration Services (USCIS) announced on May 19 that it will suspend premium processing for all H-1B Extension of Stay petitions from May 26 to July 27. During that time frame, the measure will affect petitioners’ ability to expedite the approval of H-1B Extension of Stay petitions by filing Form I-907, Request for Premium Processing Service, either concurrently or after filing the Nonimmigrant Worker Petition, Form I-129.
USCIS indicated that premium processing service will remain available for “all other Form I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.” Whether premium processing will remain available for H-1B amendment petitions and H-1B change of employer petitions that do not request an extension of stay still needs clarification.
Petitions filed under premium processing before May 26 will not be affected and should be honored within the 15-day premium processing time frame. A petitioner who filed an H-1B Extension of Stay petition using premium processing before May 26 but did not obtain a response from USCIS within 15 calendar days will be refunded the premium processing fee.
Other nonimmigrant classifications filed on Form I-129 (such as L-1 and O-1 cases) and immigrant petitions will not be affected by the premium processing service suspension.
According to USCIS, this temporary suspension is to ensure that the agency has sufficient resources to implement its final rule on work authorization for certain H-4 visa holders (spouses of H-1B workers). That final rule becomes effective on May 26. For further details on work authorization for certain H-4 visa holders, please see our previous LawFlash. Note that in a release issued late yesterday, USCIS published the filing guidance for H-4 EAD.
Adjudication of H-1B extensions not filed using premium processing currently takes approximately three to five months. In most states, the validity of a driver’s license for an H-1B worker is co-extensive with the validity of his or her H-1B petition. This means that unless an H-1B extension is filed several months prior to expiration, an H-1B worker’s driver’s license may expire while the extension is pending. Employers often used premium processing to expedite adjudication in such a situation but must now carefully plan to file extensions to avoid gaps in a worker’s ability to secure a driver’s license.
In addition, the information from USCIS does not clearly address whether petitions for H-1B Amendment and H-1B Change of Employer petitions will be subject to the suspension of premium processing. We will update you as soon as the agency has clarified this issue.
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:
A. James Vázquez-Azpiri
Lisa Stephanian Burton