On March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend premium processing for all H-1B petitions filed on or after April 3, 2017. USCIS estimates this suspension may last up to six months. This temporary suspension only applies to H-1B petitions including Cap-subject (Regular Cap, Master’s Cap), Cap-exempt, Extension, and Change of Employer (Transfer) petitions. This suspension does not impact other types of petitions that allow for premium processing (i.e., L-1, O-1, I-140).
Why The Temporary Suspension:
This temporary suspension was implemented to reduce overall H-1B processing times by USCIS. This is not the first time USCIS has temporarily suspended premium processing. Historically, USCIS has suspended premium processing of H-1B Cap petitions for some temporary period typically starting in April, which is the start of acceptance of H-1B Cap petitions. However, this year the temporary premium processing suspension applies to all H-1B petitions filed on or after April 3, 2017. As evidenced by the last few years, USCIS typically receives the maximum statutorily allotted H-1B Cap petitions within the first five business days in April. USCIS already has an existing significant regular processing backlog, especially long pending H-1B extension petitions. This is on top of the significant surge in premium processing requests over the past few years. A temporary halt to premium processing will allow USCIS to process long-pending petitions.
How This Impacts H-1B Cap (Regular Cap & Master’s Cap) Petitions:
Since H-1B Cap petitions cannot be filed before April 3, 2017, this suspension will apply to all H-1B Cap petitions filed for the fiscal year 2018. If the H-1B Cap is exhausted by the fifth business day in April, which is expected, USCIS will conduct a random, computer-generated lottery to select Cap petitions that will be accepted for processing.
This temporary suspension means that processing of all H-1B Cap petitions will be subject to regular processing until the suspension is lifted. For all timely filed H-1B Cap petitions, we expect USCIS to notify those selected by late May or early June 2017. Petitions not selected are returned to our office.
How This Impacts All Other Types of H-1B Petitions Including Cap-exempt, Extensions and/or Change of Employer (Transfer) Petitions:
USCIS will continue to premium process all H-1B petitions if the petition and request for premium processing are received prior to April 3, 2017. Note this does not apply to H-1B Cap petitions for fiscal year 2018, which can only be filed starting April 3, 2017.
Steps H-1B Employers Can Take Now:
H-1B extensions can be filed within 180 days of the expiration date of the underlying H-1B. An H-1B extension beneficiary may work for his or her H-1B employer beyond the underlying H-1B validity period, up to 240 days, as long as the H-1B extension is filed prior to the expiration date of the underlying H-1B and status has been maintained. If you have H-1B employees that are within 180 days of the expiration of their H-1B validity period, the H-1B extension petition must be filed prior to April 3, 2017 if premium processing is desired
H-1B transfers (which can include extensions) can generally be filed after the job offer has been accepted. H-1B transfer beneficiaries may be placed on the transfer company’s payroll after the filing of a transfer petition and need not wait for the petition to be approved. If an employer wishes to premium process a transfer petition, it is recommended the hiring decision be made at least three weeks prior to April 3 so as to allow time to prepare and file the transfer petition prior to April 3 to take advantage of premium processing.
After this temporary suspension is lifted, if your H-1B petition (Cap and non-Cap) remains pending, it can be “converted” to premium processing. The premium processing form and filing fee of $1225 cannot be filed for any H-1B after April 3 up until this suspension is lifted. Doing so will cause the premium processing form and fee to be rejected. After April 3, if the premium processing fee and H-1B fees are combined in one check, which is never recommended, then this will cause the entire case to be rejected.
To learn about USCIS’ longstanding expedite request criteria, please click here.
Watch this space for further developments on the temporary suspension of premium processing for all H-1Bs. If you have any questions or concerns, do not hesitate to contact us directly: