USCIS Increases Premium Processing Suspension for H-1B Petitions
The U.S. Citizenship and Immigration Services (USCIS) announced today that it will extend and expand the suspension of Premium Processing for certain H-1B petitions for a period estimated through at least February 19, 2019.
Background on Premium Processing
H-1B petitions filed under the regular processing method have been increasingly subject to lengthy adjudication times from six to eight months or longer. Premium Processing is an expedited method of adjudication available for certain non-immigrant and immigrant visa petitions, including H-1B petitions. Premium Processing is requested by filing Form I-907 and including an additional government filing fee of $1,225.00. It guarantees a response by USCIS (either an adjudication or Request for Further Evidence) within fifteen (15) calendar days of a petition being submitted.
Impact on H-1B Petitions
H-1B petitions that are subject to the Fiscal Year (FY) 2019 cap, request new employment, request an amendment to existing employment, or request a change of employer, and that are filed and receipted into the USCIS on or after September 11, 2018 will no longer be eligible for Premium Processing until further notice, and will be subject to significantly lengthier processing times than may otherwise be secured through the Premium Processing method.The biggest impact is likely to be lengthy delays for new hires who are transferring H-1B status and change of employer petitions. As the USCIS also recently issued a new policy effective September 11, 2018, allowing USCIS officers with the discretion to deny petitions outright without first providing an opportunity to respond to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), it further increases the risks for H-1B transfers, and the ability for foreign nationals to utilize portability. Petitioners who are filing an extension of status with no material change to the job role, and certain cap-exempt employers, will be exempt from this suspension policy.
It is unclear whether the USCIS will continue to honor expedited processing for H-1B petitions submitted with Premium Processing that have been filed and receipted but not yet adjudicated prior to September 11, 2018. USCIS has stated it may choose to adjudicate these petitions under regular processing and return any related filing fees for the Form I-907 requesting Premium Processing.USCIS estimates that this suspension will remain in effect until February 19, 2019. However, it is unclear at this time if the suspension will be further expanded or extended.
If H-1B cap-subject petitions selected in the lottery are not adjudicated by October 1, there may be an impact on certain F-1 students who are currently working under “cap-gap” provisions.
The USCIS has noted that discretionary expedite requests for processing remain available for certain petitions. However, these requests are only accepted in very limited situations, including a showing of severe financial loss to a company or person, emergency situations, or humanitarian reasons, among others. All expedite requests are reviewed on a case-by-case basis and granted at the sole discretion of the USCIS’s office leadership.Gibney is working with clients to evaluate the impact of this new policy and how it is being implemented.
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