USCIS just announced an extension and expansion of its suspension of premium processing services for certain H-1B petitions. Previously, the USCIS had implemented a suspension of premium processing services for H-1B cap-subject petitions. Now, the USCIS is extending the suspension and expanding the terms of the suspension to include other H-1B petitions.
In a statement released by the USCIS, officials informed the public that the currently instated suspension of premium processing services for H-1B cap-subject petitions will be extended. The USCIS offers a premium processing service for certain immigrant and nonimmigrant petitions, which gives USCIS officers a deadline of making a decision within 15 days of filing, for a fee of $1,225. In fact, beginning on October 1, 2018, the premium processing service fee will be raised to $1,410. Until recently, this premium processing service was also available to H-1B cap-subject petitions, that is, for H-1B petitions filed for the H-1B cap-subject lottery petitions. However, earlier this year, the USCIS announced that individuals and organizations would not be able to request premium processing services for H-1B cap-subject petitions until sometime after September 10, 2018. These steps were taken, according to USCIS, to reduce the backlog of H-1B petitions at the service centers.
Now, the USCIS is stating that they will extend the suspension of premium processing services for these petitions, with an expectation that the suspension will last until at least February 19, 2019. USCIS’ reasoning for continuing the suspension of premium processing service is that the service centers are currently experiencing large amounts of backlog because of premium processing requests. This has, in turn, made processing times for non-premium processing petitions last longer than expected, placing certain petitions with time-sensitive dates at the risk of not being processed in time. As such, this suspension seeks to minimize processing times for non-premium processing petitions.
Furthermore, an overall increase in the scrutiny of all H-1B petitions has led to a drastic increase of Requests for Evidence (RFEs) submitted to sponsors of H-1B beneficiaries. Thus, there has been an additional increase in the workload of officers reviewing H-1B petitions, contributing to the backlog. USCIS claims that the suspension of premium processing services for H-1B petitions has been enacted so that officers may address and review cases that have been backlogged. However, suspending the premium processing services means that those with petitions which have been pending for a long period of time, and whose lawful status and authorization to work will soon expire, will not have the ability to speed up the processing of their petition, thus leaving them with the decision of leaving the United States without an approval, or staying in the United States and putting their lawful status at risk.
Moreover, the USCIS is also expanding the suspension of premium processing services for other types of H-1B petitions. The suspension will now apply to all H-1B petitions filed at the Vermont and California Service Centers (excluding certain cap-exempt filings). This includes the suspension of premium processing services for H-1B change of employer petitions. The USCIS will continue premium processing for cap-exempt H-1B petitions that have been or will be properly filed with a request for premium processing before September 11, 2018. If the petitioner filed the request for premium processing before September 11, 2018, but the USCIS did not adjudicate the petition within the 15-day processing period, then the premium processing fee will be refunded to the petitioner.
USCIS clarifies that the suspension does not apply to:
- Cap‐exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
- Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I‐129) with a concurrent request to:
- Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I‐129); or
- Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I‐129).
As H-1B change of employer petitions will be directly affected, it is important to note the consequences of receiving a denial for these petitions. Previously, a beneficiary of an H-1B change of employer petition would be able to port to their new office while that petition was pending. At the time, as is currently the case, there was a risk that, if the petition were to be denied, then the Beneficiary would lose their status and would then have been working unlawfully for the new employer. To avoid any further conflict with USCIS, the Beneficiary would have to immediately cease working with the new employer, and plan to leave the United States as soon as possible. However, with premium processing, the situation would not be as dire, as the timing of the approval or denial of the petition would be much quicker. If an approval was given, this would allow the Beneficiary to leave their current employer for the new employer in a matter of a few weeks. If a denial were given, and the Beneficiary had not yet ported to the new employer, then the Beneficiary would be lawfully in the US as long as they still worked for the previous employer. However, now the Beneficiary of an H-1B change of employer petition would have to wait for a period of around 6 months before receiving an approval. As such, the Beneficiary would have to leave their current employer for a new employer without receiving an approval, and it could take months before receiving a decision from the USCIS. This puts the Beneficiary’s lawful status at risk if the case is not approved. Employers would have to convince H-1B beneficiaries to port before an approval, although the Beneficiary might not want to port until they are sure that their status has been approved.
This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I‐129, or to immigrant petitions filed on Form I-140. The premium processing fee, which is currently at $1,225, will be increased to $1,410 on October 1, 2018. If you are uncertain whether your H-1B petition will be affected by this suspension, please contact the Margolis Law Firm for a review of your case.
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