On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that, beginning on April 3, 2017, it will temporarily suspend Premium Processing for all H-1B visa petitions. Premium Processing is a USCIS service providing expedited processing for certain employment-based petitions and applications. Specifically, USCIS guarantees 15-calendar day processing to those petitioners or applicants who choose to use this service for a government Premium Processing fee of $1,225. Premium Processing has been especially desirable in recent years, as the regular processing adjudication timeline for H-1B petitions has increased significantly – sometimes taking up to one year. While premium processing is suspended, USCIS will reject any Form I-907, Request for Premium Processing filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will have to reject both forms. USCIS will notify the public before resuming premium processing for H-1B petitions.
Who Is Affected?
The temporary suspension applies to Premium Processing for all H-1B petitions filed on or after April 3, 2017. It does not suspend the H-1B program, but only the Premium Processing of such petitions. Since Fiscal Year 2018 (FY18) cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”).
The suspension also applies to petitions that may be “cap-exempt.” Cap-exempt employers are not subject to the Fiscal Year quota (cap) and may file for an unlimited number of H-1Bs at any time. For example:
- Employers who are non-profit organizations affiliated with an institution of higher education, non-profit research organizations, or governmental research organizations;
- Employers filing H-1B petitions for workers who are currently in H-1B status and applying for extension(s) of stay, moving to another job or amending their previously approved employment; or
- Employers of H-1B workers who are applying to work in a second H-1B position, concurrently with an already-approved H-1B position.
Who Is Not Affected?
This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129, other than H-1B – for example, O-1, L-1, TN, E-1/2, etc. It also does not apply to immigrant petitions.
Premium Processing Will Continue for Petitions filed Prior to April 3
USCIS will continue to premium process H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, USCIS will refund the premium processing fee if:
- The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
- USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.
Requesting Expedited Processing Pursuant to USCIS’ Expedite Criteria
While Premium Processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the USCIS Expedite Criteria webpage:
- Severe financial loss to company or person;
- 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;
- USCIS error; or
- Compelling interest of USCIS.
It is the petitioner’s responsibility to demonstrate that at least one of the expedite criteria has been met. Petitioners must also submit documentary evidence to support expedite requests. USCIS reviews all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. In our experience, USCIS rarely grants expedited processing based on the above criteria and only in the most compelling circumstances.
Reason for Temporarily Suspending Premium Processing for H-1B Petitions
According to USCIS, this temporary suspension will help to reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS hopes to be able to:
- Process long-pending petitions, which USCIS has currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
- Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day automatic employment authorization extension mark.
Employers may file H-1B petitions up to six months in advance of the desired employment start date. Therefore, we encourage employers to file H-1B petitions as soon as possible to avoid a gap in employment and travel authorization. Employers who are contemplating the filing of H-1B petitions and are able to file prior to the April 3 deadline (such as cap-exempt employers and employers filing H-1B extensions, amendment, concurrent employment or change of employer petitions), should file prior to the Premium Processing moratorium.