USCIS to suspend Premium Processing of H-1B Petitions

 The U.S. Citizenship and Immigration Service (USCIS) has announced that beginning April 3, 2017, it will temporarily suspend Premium Processing of I-129 Petitions filed by U.S. employers seeking H-1B work visas on behalf of professional foreign national employees in specialty occupation positions.

This suspension will apply to all H-1B Petitions including:

– H-1B Petitions filed under the so-called H-1B Cap for Fiscal Year (FY) 2018,
– H-1B Petitions filed by cap-exempt employers, and
– H-1B Petitions filed on behalf of cap-exempt employees (i.e., H-1B transfers).

Since 2001, USCIS has permitted employers filing petitions for certain immigrant and non-immigrant visa categories to pay an additional fee of $1,225.00 for the Premium Processing service. Applications filed with Premium Processing are adjudicated by USCIS within 15 days of receipt.

Currently, USCIS is processing H-1B petitions filed without Premium Processing in approximately 8 months at its California Service Center and 11 months at its Vermont Service Center.

USCIS has stated that the temporary suspension of Premium Processing will enable the agency to reduce overall processing times of H-1B petitions. 

In light of the very lengthy processing times, USCIS Premium Processing is a critical tool for U.S. employers seeking to hire and on-board a foreign national professional employee within a reasonable time period. It provides U.S. employers with a degree of certainty and reliability regarding their current and future workforce.

The suspension of Premium Processing is likely to hurt cap-exempt employers the hardest; particularly universities and school districts and health care facilities affiliated with institutions of higher education. Many of these employers have come to rely on the H-1B program as a way to bring on foreign national employees as teachers, doctors and other professional health care workers to expeditiously fill critical and time-sensitive positions within their organizations. Without a mechanism to expedite adjudication of H-1B petitions for these types of positions, we are likely to see shortages in our classrooms, hospitals and clinics.

The suspension of Premium Processing may also have a negative impact on mobility in the professional workforce by hindering the ability of foreign national employees to transfer their H-1B visas between U.S. employers with ease. The regulations do permit an H-1B employee to being employment with a new U.S. employer as soon as the new employer has filed an H-1B transfer petition on behalf of the employee with USCIS. However, in order for that employee to continue working for the new employer, the H-1B transfer petition must be approved by USCIS. Thus, many U.S. employers and H-1B employees utilize the Premium Processing service in order to ensure that the H-1B petition is approved and employment is authorized, in order to avoid any lapses in status in the future.

H-1B employees with pending H-1B extensions of status who need to travel internationally may also be negatively impacted. A foreign national on H-1B status whose petition for an extension of H-1B status is pending with USCIS is permitted to continue working for their sponsoring employer inside the United States for up to 240 days after their current H-1B status has expired. However, if these individuals leave the United States, for example to visit a sick family member abroad, they will require a new H-1B visa to return to the United States. Since a new H-1B visa can only be obtained with an H-1B approval notice, they will not be able to receive a new H-1B visa until USCIS has adjudicated and approved their pending H-1B extension petition. Therefore, H-1B employees with pending H-1B extensions will likely face impediments to international travel until their H-1B extension has been approved by USCIS.

U.S. employers filing H-1B petitions under the annual cap will file their H-1B petitions on April 1, 2017, requesting that professional foreign national employees be approved to commence work in H-1B status at the beginning of the fiscal year – October 1. Since these petitions would not authorize H-1B employment until October 1, Cap-Subject petitions would appear to be the least impacted. However, if we approach October 1 and these petitions have not been adjudicated and Premium Processing has not been reinstated, employers will be without recourse to have these petitions approved.

U.S. employers exempt from the H-1B cap should consider filing petitions for potential H-1B employees prior to the April 3, 2017 suspension of the Premium Processing program.

U.S. employers with H-1B petitions filed on behalf of foreign nationals that are currently pending with USCIS should also consider whether it is in their or their employee’s interest to “upgrade” to Premium Processing prior to the April 3, 2017 suspension of the Premium Processing program.

For more information on the H-1B Visa Program, Premium Processing, the latest changes to the Premium Processing of H-1B Petitions at USCIS or other immigration matters, please contact Kolko & Associates, P.C.