On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced the suspension of premium processing for all H-1B petitions. This suspension starts April 3, 2017, and affects all types of H-1B cases. As outlined in the announcement, USCIS has indicated that it may suspend premium processing for up to six months so that the government can decrease the current backlog and processing times of all H-1B petitions. With premium processing, USCIS will process (approve, deny, send a request for additional evidence) within 15 calendar days for an extra filing fee of $1,225.
Cases Affected by the Premium Processing Suspension
This suspension of premium processing will affect all types of H-1B cases including:
- FY 2018 H-1B cap petition cases filed and received by USCIS from April 3-7
- H-1B extensions
- Amended H-1B petitions
- H-1B cap-exempt cases
- H-1B change of employer cases
- J-1 physician waiver change to H-1B status cases
Cases Not Affected by the Premium Processing Suspension
The suspension of premium processing does not affect other types of nonimmigrant work visa and immigrant visa petitions including:
- Form I-129: E-1, E-2, H-2B, H-3, L-1A, L-1B, Blanket L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-Canada, TN-Mexico
- Form I-140: EB-1 extraordinary ability, EB-1 outstanding professors and researchers, EB-2 advanced degree professionals (not national interest waiver), EB-3 professionals, EB-3 skilled workers, EB-3 other workers
Requests to Expedite H-1B Petitions
While premium processing requests have been formally suspended, USCIS has identified that petitioners may request expediting of an H-1B petition under standard expedite request criteria. USCIS may expedite adjudications if the petitioner is able to demonstrate they meet one of the following criteria:
- Severe financial loss to company or person
- Emergency situation
- Humanitarian reasons
- Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States
- Department of Defense or national interest situation (These expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government)
- USCIS error
- Compelling interest of USCIS.
Adjudications for these requests are at the discretion of the reviewing officer and are made on a case-by-case basis. USCIS has encouraged petitioners who pursue this option to submit documentary evidence with their request. Expedite requests under these criteria are not typically approved, and this will likely be the case when premium processing is not available.
Current USCIS processing times for H-1B petitions range from approximately six to nine months at the Vermont Service Center and the California Service Center. In August 2016, the Nebraska Service Center also started to process specific H-1B petitions (H-1B extensions with the same employer with no changes in employment). Current processing times for these types of petitions at the Nebraska Service Center are taking about two months. Without premium processing, regular processing could take closer to 12 months across all of the service centers.
Impact of Suspension on Employers and H-1B workers
The suspension of premium processing will have a significant impact on employers and H-1B employees. Both individuals currently in H-1B status and those needing to change to H-1B status from another visa status will be impacted. For example:
- FY 2018 H-1B Cap Cases: Many H-1B cap cases are filed with premium processing for additional certainty in knowing if an H-1B cap is/is not selected in the H-1B lottery and then in obtaining the approval. If a case is not selected in the lottery, H-1B employers and employees can start to analyze and make arrangements for another visa type for work authorization (if available), additional F-1 student status or work authorization, or a potential assignment outside of the U.S. Without premium processing, employers and workers will be left in limbo.
- Travel Abroad and Return to the U.S.: Many H-1B workers travel for vacation and to visit family in their home countries. H-1B extensions are filed with premium processing so these workers can leave the U.S., obtain the necessary H-1B visa in their passport from a consulate overseas and then return back to the U.S. in H-1B status. If these H-1B workers cannot obtain H-1B approval notices, they will need to remain in the U.S. This will be very difficult for H-1B workers with urgent or emergency situations and travel. Without premium processing, these individuals will be forced to remain in the U.S.
- H-1B Extensions/240-Day Rule for Employment Authorization: If an H-1B extension is filed by the time of expiration, the rules allow for 240 days of work authorization while USCIS works on the pending extension petition. It has become more and more common for USCIS not to approve these applications timely. Although USCIS has allowed inquiries when getting close to the 240 days, without premium processing, it is likely that more and more cases will start closing in on the 240 days allowed for work authorization. This will cause uncertainty for employers and employees in this situation.
- Change of Status: Many foreign nationals in the U.S. are in another visa status (F-1 students, H-4 dependents, J-1 physicians) and need to change status to H-1B status. Many (if not all) of these H-1B petitions are filed with premium processing as these individuals need to be in the H-1B status in order to have the appropriate work authorization for employment. Unlike H-1B extensions which have the 240-day rule highlighted above, foreign nationals who need the change of status to H-1B status need the H-1B work authorization to start employment. Therefore, if their current status is going to expire or a new position has a specific start date, the H-1B status needs to be in place by that time. Suspension of premium processing will have a significant impact on H-1B employers and employees in this situation.
- J-1 Physicians: The suspension of premium processing will have a profound impact on J-1 physicians who are in the processing of obtaining approvals of J-1 physicians waivers to work in medically underserved areas throughout the United States. Most states have or are in the process of granting the 30 available slots for physicians to receive waivers of their two-year home residence requirement in order to work in underserved medical areas for a three-year time period. Most of this employment will start on or about July 1. Under the J-1 physician waiver rules, these physicians are required to work under the three-year obligation in and only in H-1B status and must start in the H-1B status within 90 days of the J-1 waiver approval. These H-1B petitions are filed with premium processing so these physicians can obtain their H-1B status and start working as soon as possible in medically underserved areas.
- Other H-1B Status/Employment Issues: Other H-1B status issues arise, and it is important to have premium processing available to quickly rectify and deal with these situations. Suspension of premium processing will also impact these scenarios. This can include termination of employment, H-1B status based on passport expiration, change of job location and other issues.
- H-1B Change of Employer/H-1B Portability: Many H-1B change of employer petitions are filed with premium processing. Both H-1B employers and employees like and rely on the certainty of having an H-1B approval in place before moving from one H-1B employer to another. Although H-1B portability typically works in the change of employer situation to allow the employment to start while waiting for the approval, there are circumstances when H-1B portability does not apply. Suspension of H-1B premium processing will likely restrict the movement of employment as both H-1B employees and H-1B employers may be more anxious to move forward with the change of employment based on this uncertainty.
- Driver’s License Renewals: Many states require an H-1B approval notice for the renewal of a driver’s license. Without premium processing and the ability to obtain H-1B approval notices more quickly, H-1B workers will have issues in renewing the licenses and maintaining the proper documentation required to drive.
These are just a few examples of the impact of the suspension of premium processing based on the USCIS notice issued on March 3. In May 2015, USCIS suspended premium processing for a specific time period from May 26, 2015, until July 27, 2015, only for H-1B extension petitions. This did not include H-1B change of status, new employment and other situations. At the end of May 2015, USCIS began the processing of H-4 EAD applications for spouses. USCIS was afraid that too many H-1B extension petitions would be filed with H-4 extensions and H-4 EAD requests and suspended premium processing for H-1B extensions during this limited time period. This did not end up happening. Therefore, premium processing resumed earlier in July 2015 than with the initial planned suspension. Again, this suspension of premium processing in 2015 was only for H-1B extensions — not all types of H-1B petitions referenced in the March 3 announcement. Hopefully, this broad suspension will be revised so that J-1 physicians and others can obtain H-1B status more quickly and can use H-1B premium processing to obtain H-1B work authorization for fellowships and other employment that starts on or about July 1. We will send out further updates on this important issue as more information is released and when the suspension is no longer in place.