Business Immigration Insights

On Friday, March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that premium processing service will be suspended for all H-1B petitions received on or after April 3, 2017. This suspension may remain in place for up to 6 months.

What Is Premium Processing and Why Is This Suspension Happening?

Employers who opt for premium processing service must pay an additional $1,225 fee to USCIS for adjudication of certain petitions within 15 calendar days. H-1B employers who do not pay the additional fee often wait 6 months or longer for their petitions to be adjudicated. At this time, premium processing will remain available for other types of temporary and permanent classifications.

USCIS has previously suspended premium processing for certain types of cases (including H-1B extension petitions) in order to address workload issues. The present suspension is noteworthy because all H-1B petitions will be affected as of the effective date, including sensitive H-1B cap filings. Although some media outlets are suggesting that this decision came from the Trump White House, there is no indication that is the case.

It is no coincidence that April 3, 2017 is also the first day USCIS will begin receiving petitions for new H-1B workers who are subject to the FY2018 H-1B cap. Typically, a significant percentage of H-1B cap petitions request premium processing, forcing USCIS to allocate extensive resources to adjudicate a large volume of H-1B cases within a short time. USCIS claims that temporarily suspending premium processing for all H-1B cases will allow them to address a backlog of regular H-1B petitions that have been pending for many months.

How Will This Affect H-1B Cap Petitions?

Premium processing does not affect the chances that an H-1B cap petition will be selected in the lottery and/or approved. Most H-1B cap petitions are adjudicated before October 1st, the earliest date H-1B status begins. There are several ways that cap cases may be affected:

• Delayed notification of lottery results. In previous H-1B cap filing seasons, petitioners who chose premium processing service would receive an email notification after the lottery selection process was completed. Petitions filed under regular processing would be notified by mail in subsequent weeks. Without the premium processing option, all petitioners and their employees will have to wait until paper notices are issued regarding selection or rejection in the lottery.
•  International travel and change to H-1B status. Some employees would normally be able to travel internationally after their employer’s H-1B cap petition was approved, without affecting the request to change to H-1B status at the start of the H-1B validity period. The suspension of premium processing will limit situations where this can be done because final approvals will presumably take longer to receive. Employees who need to travel while their employer’s H-1B cap petition is in process will need to consider the additional steps that may be necessary to change to H-1B status, before making travel plans.

How Will This Affect Regular (Non-Cap) H-1B Petitions?

Because of rules that allow H-1B portability and a 240-day automatic extension of work authorization upon the filing (not approval) of a petition for someone who is already in H-1B status, premium processing is usually not critical for most regular (non-cap) H-1B petitions. However, in some situations, companies and their employees will be significantly impacted by this suspension, including the following:

• International travel requires a valid H-1B petition. H-1B workers must have a valid petition approval in order to return to the United States following international travel. Premium processing currently allows employers to obtain quick approvals for their employees who need to travel and obtain a new visa stamp to return to the United States.
• Employees who need an H-1B approval to obtain/renew a state driver’s license. Many states refuse to issue or renew a driver’s license to nonimmigrants who do not have an approved petition, even if the individual is legally authorized to continue working while an extension petition is in process. Premium processing is often needed to quickly obtain the H-1B approval so these persons can maintain a valid driver’s license at all times.

Hunton & Williams’ Immigration Group is reviewing our records to identify potentially affected H-1B workers, and reaching out to those clients about possible steps that are available to limit the impact of this change in USCIS policy. Please contact our attorneys to discuss any questions you may have.