Background

“Premium processing” is a program in which applicants pay an additional $1,225 to expedite a petition. It is applicable only to certain petition types.  USCIS must act on the petition within 15 calendar days under Premium Processing. Additionally, petitioners using the program can call or email USCIS with case processing questions or problems so that they are more easily and directly resolved.

In the past, USCIS has suspended Premium Processing for the H-1B “cap” applications (which must be submitted the first five business days in April) until the “lottery” can be drawn.  Usually premium processing resumes a few weeks later.  During this time, other petitions (not H-1B “cap” cases) have been accepted under the program.

This suspension is much broader than past practice.  Based on workload concerns, USCIS is planning to suspend Premium Processing on all petitions for H-1B received on or after April 3.  Although a firm date is not given, USCIS has stated that the suspension could last for six months.

Other categories that qualify for Premium Processing are not affected by this announcement.  Therefore, premium processing of  E, L, O, R and TN petitions would continue, as would the immigrant categories that can use premium processing.

The Expedite Criteria will still continue in effect.  If a petition meets one of the Expedite Criteria (listed below) then USCIS will process it quickly without paying the Premium Processing fee.  The Expedite Criteria are:

• 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 particular expedite requests must come from an official U.S. government entity and state that any delay will be detrimental to the government.);
• USCIS error; or
• Compelling interest of USCIS.

We would not expect expedites to be granted in many cases.

The stated reason for the suspension is to allow USCIS to catch up on work load.  H-1B adjudications filed without Premium Processing have been taking several months. This means that the 240-day automatic work authorization can run out before a case is decided.  USCIS has expressed the intention to catch up on the regular processing cases in light of increased work load.

Advocacy efforts are already underway to engage USCIS regarding this plan. It is problematic for many reasons, including preventing people from starting work when changing status and renewing driver’s licenses in some states when extending H-1B status.

Examples of specific impacts include:

• H-1B “cap” petitions:  Premium Processing will not be available until the suspension is lifted. It will then be available only to those who have a receipt.  Those planning international travel or school enrollment will need to make alternative plans.  H-1B extension: Filing a timely extension provides work authorization of 240 days following the expiration of the current H-1B.  Those planning  international travel, will need the approved H-1B to obtain a new visa after the current visa expires.  Also, some states will not extend driver’s licenses based on receipt (Iowa does).
• Change of employers if you are in H-1B status:  “Portability” allows an H-1B holder to work after filing and before approval.  If a “porting” petition is not clearly approvable, exercising portability is not advisable. Otherwise, there is no 240-day limit to work under portability.  The main concern would be international travel and driver’s license issuance.
• People outside the U.S.:  Persons outside the U.S. cannot enter until an approval is received and a visa is issued. 
• “Cap exempt” petitions (such as physicians with J-1 waivers or persons changing status from F-1 to H-1B for a “cap exempt” employer):  Work cannot commence until the change of status petition is approved.  
• Adjustment of Status pending:  People who have filed Adjustment of Status (AOS) to obtain permanent residence (“green cards”) in the United States and who are also maintaining H-1B status will have an “advance parole” travel document as well as H-1B.  Because of separate concerns about the continued viability of advance parole, we have advised that the H-1B be used for international travel.  Again, the H-1B approval would be needed to renew the H-1B visa if needed to return from international travel.

Recommendations

We have no options for H-1B “cap” cases at this time to achieve Premium Processing.

For those with extensions pending, you can interfile Premium Processing by March 31 (last day to mail is March 30).

Extensions of stay not yet filed may be filed six months in advance of the start date requested.