Clarity and Strength in Immigration Law

H-1B Cap FY 2015: Should I File the H-1B Via Premium Processing?

We are quickly approaching the April 1 filing date for H-1B cap-subject petitions. One question many clients ask is whether they should request premium processing for their H-1B petition.

What is premium processing?

Premium processing refers to an optional service that USCIS offers for some types of petitions, including H-1B petitions. If a petitioners choses to file via premium processing, USCIS will make a decision or issue a request for evidence within 15 calendar days of receiving the petition. If for some reason USCIS does not make a decision or issue a request for evidence within 15 days, they must issue a refund.

If a request for evidence is issued, USCIS  has an additional 15 calendar days to make a decision under the premium processing program.

The USCIS premium processing fee is currently $1225.

Will it increase my chances of being selected if there is an H-1B visa lottery?

If USCIS receives more H-1B petitions during the first five business days of filing than they have slots available for (i.e. more than 65,000 regular H-1B petitions and 20,000 US master’s degree petitions), USCIS will hold a lottery. This means that they will randomly select enough H-1B petitions from the pool of submitted petitions to fill the quota.

Filing a petition via premium processing has no impact on your chances of being selected in the H-1B lottery. In fact, last April, USCIS announced that the 15 day premium processing clock would not begin until after the H-1B lottery was complete.

When can I start working in H-1B status? Will I be able to start working sooner?

If you are filing an H-1B petition that is subject to the H-1B cap, you will not be able to start working until October 1 of that year (or until your petition is approved, whichever is later). So if you file an H-1B petition via premium processing and it is approved in May, for example, you still will not be able to start working in H-1B status until October 1.

Why would I use premium processing?

Each petitioner and beneficiary must weigh the costs and benefits to using premium processing for an H-1B petition filing, depending on the specific facts of the case. Given the information outlined above, it may not make sense to use premium processing for a cap-subject H-1B petition. A few situations (this is not a complete list) in which you may want to use premium processing:

–          You need to travel internationally and are filing a change of status request from another status to H-1B. If you travel while a change of status request is pending, the change of status portion of the filing will be deemed abandoned and denied. Therefore if you need to travel internationally, you may want to file premium processing to have the petition approved before you travel (make sure to check with your attorney before traveling).

–          You are working pursuant to the H-1B cap gap, which only allows you to work until October 1, October 1 is approaching and your petition is still pending. You will need an approved petition in this case, to keep working.

–          You will sleep better knowing the petition is already approved, and you are willing to spend the money for the premium processing fee.

Can I request it later if I need to?

Yes, this is called a premium processing upgrade. If you file the petition in the “regular” process and then later decide you need or want to file in premium processing, you can make that request while the petition is pending with USCIS.

Do you need assistance with your H-1B petition filing, or other immigration matters? Please contact us at 804-396-3412 or at info@sumnerimmigration.com. We are happy to assist and look forward to hearing from you.

 You may also be interested in these posts: 

Bucking the Trend: Five Trends in H-1B Processing for 2014 and Solutions for Success

–  H-1B US Master’s Degree Cap: Graduates of For-Profit and Unaccredited Universities Beware!