USCIS recently announced a significant expansion of its suspension of premium processing for H-1B petitions. While FY 2019 cap-subject petitions were already excluded from premium processing, it had been expected that premium processing would become available in September 2018. Instead, USCIS has extended the duration of the suspension in this category, and they have added other H-1B petition categories to the list of excluded case types. Their current estimate for resumption of H-1B premium processing services is February 19, 2019.
Who is affected? All H-1B petitions are affected, with the exception of the two categories listed below. Premium processing is not currently available for cap subject petitions, petitions for a change of employer, or petitions for an existing employee but which involve a change in employment.
Who may still utilize premium processing? There are limited categories of H-1B petitions that remain eligible for premium processing:
- Petitions filed at the California Service by cap-exempt petitioners. This refers to petitioners who are statutorily cap-exempt (institutions of higher education, nonprofit organizations/entities that are related to or affiliated with institutions of higher education, nonprofit research organizations, and governmental research organizations).
- Petitions filed at the Nebraska Service Center for “continuation of previously approved employment without change with the same employer.” This is limited to petitions filed for existing employees, and both the position and the location of employment must be the same. Any H-1B petitions involving a change in employment are ineligible for premium processing at this time.
USCIS is retaining premium processing in other immigrant and non-immigrant visa categories. However, effective October 1, 2018, the fee for premium processing will be increasing by nearly 15%, to $1,410.00 (in addition to the regular fee for the petition being filed).
What are best practices for submission of petitions when premium processing is not an option? Anticipate delays, and file early, when possible. The percentage of H-1B petitions receiving Requests for Evidence (RFEs) has skyrocketed over the past year. An H-1B petition may be filed up to 180 days before its start date (i.e. for extensions, up to 180 days before the expiration of the current period of stay). It is prudent to file as early as possible. In some situations, employees will be eligible to continue working in H-1B visa status for up to 240 days past the expiration of their current period of status, so review each petition for eligibility, and keep an eye on that date in the event that the petition takes longer than expected, particularly in light of the significant increase in RFEs.
Is there anything else that can be done for urgent cases? Petitioners may submit requests to expedite to USCIS, if the situation meets at least one of USCIS’s stated criteria:
- 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 ;
- USCIS error; or
- Compelling interest of USCIS.
The government may also initiate a request when the delay is detrimental to the government, in situations involving the Department of Defense or situations in the national interest. For all of these requests, keep in mind that it is a discretionary decision on the part of USCIS as to whether any particular case will be expedited.
By Jennifer West