On August 28, 2018, U.S. Citizenship and Immigration Services (USCIS) announced an expansion of its temporary suspension policy for premium processing of certain H-1B Specialty Occupation petitions effective September 11, 2018. Where available, the USCIS premium processing service permits employers to request expedited processing of certain petitions for a $1,225 filing fee. In its announcement, USCIS stated that the “temporary suspension will help us to reduce overall H-1B processing times” for cases filed and pending under the regular process. Click here to view the USCIS announcement.
Which H-1B filings are currently ineligible for premium processing?
Previously, on March 20, 2018, USCIS announced the suspension of premium processing for FY2019 H-1B cap petitions, which it anticipated would be lifted after September 10, 2018. Click here to view the prior USCIS announcement. However, instead of lifting the current suspension on September 11, 2018 as previously announced, USCIS instead has extended the suspension of premium processing for FY2019 H-1B cases until an estimated date of February 19, 2019.
Which additional types of H-1B filings will become temporarily ineligible for premium processing on September 11, 2018?
In addition to FY2019 H-1B cases, employers will not be able to file the following categories of H-1B petitions under premium processing beginning on September 11:
- H-1B change of employer filings (including H-1B portability filings);
- H-1B amendments (with or without extension) seeking to report a change in location or other material change in employment; and
- H-1B extensions where there has been a change in the previously filed employment.
The suspension of premium processing for these H-1B filings cases will continue until an estimated date of February 19, 2019.
Which types of H-1B filings will remain eligible for premium processing?
The following types of H-1B petitions will not be affected by the USCIS announcement and will continue to be eligible for premium processing:
- Extensions filed by the same employer for the same H-1B position, without any change in circumstances (“continuation of previously approved employment with the same employer without any change”); and
- Petitions filed by cap-exempt institutions or organizations (such as certain universities and hospitals).
Please note that employers can only file an H-1B petition requesting continuation of previously approved employment without change in cases where the employee has remained in the same job with the same duties, without having been promoted or otherwise experienced any change in the terms of the H-1B employment since the filing of the prior H-1B petition.
Does the expansion of the premium processing suspension affect any other visa classifications?
No. The suspension of the premium processing only affects the H-1B filings listed above. Employers can continue to file petitions for TN NAFTA Professional, L-1 Intracompany Transferee and O-1 Extraordinary Ability classifications under the premium processing program.
Please note that petitions filed for professionals under the H-1B1 Chile/Singapore and E-3 Australian categories will remain ineligible for premium processing.
When will USCIS lift the suspension of the premium processing program for these H-1B petitions?
USCIS announced that the suspension will be in effect until an estimated date of February 19, 2019.
How will the suspension affect H-1B cap gap cases that are not approved by October 1?
Unfortunately, the continued suspension of premium processing for FY19 H-1B cap cases means that some “cap-gap” cases may not be approved by October 1, 2018. “Cap-gap” refers to H-1B beneficiaries in this year’s cap group whose F-1 Optional Practical Training (OPT) expired after April 1, 2018 but whose work authorization was automatically extended until September 30, 2018 when their H-1B petitions were selected in this year’s H-1B lottery.
A “cap gap” employee whose H-1B cap petition is not approved by October 1 will lose work authorization and may not continue to work until the H-1B petition is approved. If the employee continues to work on October 1 without an H-1B approval, not only will the employer be liable for employing an unauthorized worker, but under a new USCIS policy the employee will begin to accrue “unlawful presence” in the U.S., which can significantly jeopardize future status in the U.S.
Please note that F-1 “cap-gap” students whose work authorization expires on September 30 may remain in the U.S. for up to 60 days while waiting for the H-1B to be approved, but, again, beginning October 1 they may not work until such time that their H-1B petition is approved.
Is there any other way to request expedited processing for H-1B petitions for urgent situations?
In its recent announcement, USCIS reminded the public that it will consider, on a case-by-case basis, expediting H-1B petitions filed under regular processing based on severe financial loss to company or person, an emergency situation, urgent humanitarian reason or other compelling interest. However, in the past, USCIS has used its discretion to grant such expedited requests only in extremely limited and compelling circumstances.
Sidley will host a webinar entitled “Update on Premium Processing Suspension and Other Recent H-1B Developments” on September 13, 2018. Please click here to register for this webinar program.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
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