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USCIS Scaling Back Premium Processing for Most H-1B Petitions

In a recent announcement, US Citizenship and Immigration Services (USCIS) advised the previous suspension of premium processing for cap-subject H-1B petitions will continue to February 19, 2019 and will be expanded to include additional H-1B petitions. The expansion will take effect on September 11, 2018. However, USCIS will continue premium processing of pending H-1B petitions if the petitioner properly filed an associated Form I-907 before September 11, 2018.

The suspension will not apply to:

  1. 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 such as government research organizations, institutions of higher education, or non-profit entities which are “related to” or “affiliated with” institutions of higher education; or

  2. Petitions filed exclusively at the Nebraska Service Center by an employer requesting an extension of stay and “continuation of previously approved employment without change with the same employer.”

USCIS also indicated, while premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate, with documentary evidence, that it meets at least one of the expedite criteria such as severe financial loss to company or person , an emergency, or for humanitarian reasons. Expedite requests will be reviewed on a case-by-case basis.

This expanded suspension of premium processing will significantly impact sponsoring employers’ hiring practices, as well as work authorization for certain H-1B beneficiaries. For instance, H-1B beneficiaries with pending FY 2019 cap-subject petitions that have work authorization pursuant to “Cap-Gap” provisions are subject to loosing such work authorization by September 30, 2018 if their H-1B is not approved before that date. In previous years, their H-1B employer had the option to request premium processing to avoid this occurrence. Not so, this year.

Another concern relates to employers seeking to hire and transfer H-1B employees. While the law permits an H-1B visa holder to transfer and begin working as soon as the new employer files their H-1B petition (and prior to adjudication), many H-1B workers and their employers prefer to obtain an approval before the transferring H-1B worker commences employment or even provides notice to their existing employer. Now, while this premium processing suspension remains in place, obtaining an H-1B adjudication may take as long as 8 months based on current processing times, thus presenting employers and H-1B workers a lengthy period of uncertainty.

© Copyright 2020 Squire Patton Boggs (US) LLP

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About this Author

Gregory Wald, Immigration Attorney, Squire Patton Boggs Law Firm
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Gregory Wald’s experience includes representing multinational and Fortune 500 companies and individual clients in all aspects of immigration law including nonimmigrant visas, and immigrant matters regarding multinational executives and managers, individuals of extraordinary ability and professionals.

He has appeared before the US Department of Homeland Security (DHS), US Department of Labor, US Department of Justice Executive Office for Immigration Review and various federal courts.

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