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H-1B Cap Premium Processing Re: Employment-Based Immigration

USCIS has announced that it will begin premium processing of H-1B petitions subject to the H-1B cap for Fiscal 2015 no later than April 28, 2014.  (See www.uscis.gov).  The annual “cap” on H-1B visas is 85,000. Normally, paying an additional filing fee of $1,225 and filing Form I-907 with an H-1B petition guarantee a response from USCIS by the 15th calendar day after the date that USCIS receives the H-1B petition.  Now, USCIS is warning that the guaranteed 15-day premium processing period may begin as late as April 28th, and that, therefore, a response on petitions could come as late as May 13, 2014. 

The expected heavy load of petitions in the first five days of April usually precipitates a lottery to determine which petitions it will entertained before the agency will begin to work through the petitions.  The likely amount of time the lottery will take prior to processing, and the high volume of anticipated filings, has resulted in the announcement. 

In the last two years, H-1B cases subject to the cap filed without the employer electing premium processing have taken several months to process.  In many cases, decisions have come later than the requested October 1st employment start date.  So premium processing is advisable where feasible, to gain a measure of predictability on timing.

No new H-1B’s are available before October 1, 2014.  As to the current fiscal year (i.e., for H-1B employment starting now and up to October 1, 2014), only “non-cap” H-1B’s can be processed.  No H-1B start dates between October 1, 2013, and September 30, 2014 are available in any H-1B category, except for the following “non-cap” situations, among others:

  • Employees or prospective employees who are nationals of Chile (special provision under U.S.-Chile Free Trade Agreement);

  • Employees or prospective employees who are nationals of Singapore (special provision under U.S.-Singapore Free Trade Agreement);

  • Employment for an institution of higher education or related nonprofit entity (statutory exemption from the cap);

  • Employment for a nonprofit research organization (statutory exemption from the cap);

  • Employment for a governmental research organization (statutory exemption from the cap); or

  • Employees or prospective employees who are nationals of Australia can qualify for E-3 visa status for employment that meets the H-1B criteria. 

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 91

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About this Author

Marko C. Maglich, Jackson Lewis, Merger transactions attorney, workplace enforcement lawyer
Principal

Marko C. Maglich is a Principal in the White Plains, New York, office of Jackson Lewis P.C. Prior to joining the firm, he directed the corporate U.S. immigration practice of a large international law firm.

Mr. Maglich practices immigration law exclusively, and is a member of the firm’s Immigration practice group. Mr. Maglich’s practice deals with all aspects of business-related visas, compliance by employers and individuals with U.S. immigration law (including in M&A transactions and workplace enforcement), and in...

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