Clarity and Strength in Immigration Law

H-1B Premium Processing Suspended Indefinitely: File Now or Wait!

USCIS has announced that starting April 3, 2017, they will suspend the premium processing option for H-1B petitions for an indefinite amount of time. USCIS has indicated that the suspension may last up to six months. Here’s what you need to know now:

Why did they suspend the premium processing for H-1Bs?

USCIS says that they are temporarily suspending the program to catch up on H-1B processing. Current H-1B processing times can be up to 10-11 months, which is much longer than usual. This increased processing time is probably due at least in part to the increase in filings for amended petitions when there is a change in worksite. Many times an H-1B petitioner or beneficiary elects to use premium processing for the H-1B petition so that they can travel, renew the driver’s license, etc. USCIS resources have been devoted to addressing these premium processing cases, which means it takes longer to process the “regular” cases, which makes the problem worse. USCIS indicates that by suspending the H-1B premium processing, they can catch up on their workload and hopefully shorten the processing times.

Does this affect premium processing for other types of cases?

No. Only the premium processing for H-1B petitions (all types of H-1B petitions, including H-1B amendments, extensions, transfers, and cap cases) is suspended.

Should I file my H-1B extension/amendment/transfer through premium processing?

If you are unsure if you should file your H-1B petition now using premium processing (remember, this takes effect as of April 3, 2017), you should speak with a qualified immigration attorney. Some reasons that you may want to consider using premium processing include:

  • You anticipate travelling outside of the US in the coming months.
  • You must have the H-1B petition approved to renew your driver’s license.
  • You have timely filed an H-1B extension petition but you must have it approved to keep working. Keep in mind that if you timely file the H-1B extension petition, you can keep working for up to 240 days beyond the expiration of your I-94 card. Once you reach the 240 day mark, you can still remain in the US while the petition is pending, but you are not authorized to work.

Also keep in mind that you cannot file an H-1B extension more than 180 days in advance of the expiration of the current I-94. Therefore if your H-1B petition will expire in more than 180 days, you cannot file an extension yet. If that’s the case, it would be prudent to file the H-1B extension as soon as you can within the 180 day window. That way you have almost the full six months to keep working, plus the additional 240 days. If the petition is still pending at that time, it is possible that the premium processing “ban” will have been lifted and you can upgrade to premium processing. If not, it is possible that the H-1B petitioner could request an expedite for your case.

I want to file my H-1B cap petition through premium processing. Can’t we file before the premium processing suspension takes effect?

If you are filing a new H-1B petition subject to the H-1B cap, you cannot file the petition before April 3, 2017. This means that you will not be able to file the petition through premium processing.

This is because we cannot file an H-1B petition more than 180 days before the requested start date. The absolute first day we can request for a new H-1B petition is October 1 (the start of the USCIS fiscal year). One hundred eighty days before October 1 is April 1. However, April 1 falls on a Saturday this year, so USCIS will not accept H-1B cap cases until Monday, April 3 this year. If we request an earlier start date (earlier than October 1), the H-1B cap petition will either be rejected or denied. Therefore we simply cannot use premium processing for H-1B cap cases at this time. If USCIS resumes premium processing for H-1B petitions before your cap petition is approved, it may be possible to file a premium processing upgrade later.

I am working on OPT or CPT and filing an H-1B cap petition, so this does not affect me, right?

In general, premium processing is not too helpful in the H-1B cap context. If an H-1B beneficiary is working using OPT, the H-1B cap gap rule generally permits that person to keep working between the expiration of their OPT and 10/1, assuming their H-1B petition is approved by that time.

This H-1B cap gap rule does not apply to H-1B beneficiaries on CPT. Once the CPT ends, they must resume studying to maintain F-1 status, and they are not authorized to work (unless otherwise authorized for part-time on-campus employment, etc). However, even if premium processing were available for your case, you still would not be able to start working in H-1B status until October 1.

There are times when premium processing is helpful in the H-1B cap context. For example, if a student is working on OPT and is thinking of applying for the STEM extension, it is often helpful to know sooner rather than later if the H-1B petition was selected in the lottery. Premium processing can also be helpful if a petition is not approved by October 1 – employers and H-1B beneficiaries often chose to upgrade the H-1B petition to premium processing in September if they do not have an approval yet, so that the beneficiary can work in H-1B status starting October 1.

What should I do now?

First, take a deep breath. This is a big change for sure, but it is not the end of the world. It’s not even the end of H-1B processing. It’s just a longer road.

If you are considering filing an H-1B extension/amendment/transfer via premium processing, start that process now. Our office has already seen a tremendous increase in the number of premium processing H-1B petitions as a result of this announcement, and we anticipate the demand will continue throughout the month. This could mean slower processing times for the LCAs, so it’s important to start early.

If you have an H-1B extension petition that is pending, think about whether you should upgrade the petition to premium processing. Factors to consider include upcoming travel, renewing a driver’s license, and coming up on the end of the 240 days during which you are authorized to keep working.

If you are going to file an H-1B extension, transfer or cap case and you chose not to file through premium processing, or if you cannot, realize that that is also okay. It probably seems that everyone and their neighbor is filing through premium processing and it’s easy to get caught up in the drama of the situation. However, filing through premium processing may or may not be the right thing for you to do, and may or may not be worth the additional fee.

 

If you need assistance with a family-based or employment-based immigration matter, please contact our office at 804-396-3412 or at info@sumnerimmigration.com to learn how we can assist. We look forward to hearing from you!

Sumner Immigration Law is LGBTQ-friendly.