USCIS Temporarily Suspends Premium Processing of All H-1B Petitions

USCIS has announced that effective April 3, 2017, they are temporarily suspending premium processing for all H-1B petitions for a period of up to six months.   This surprising announcement comes in light of the anticipated heavy demand and number of H-1B “cap” filings and also to allow the government an opportunity to catch up on long-delayed H-1B processing times.

Premium Processing Unavailable for All Filings of All Types of H-1B Petitions

Starting April 3, 2017 and for a period of up to six months, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker, for any H-1B petition – including amendments, extensions, “transfers”, or “cap.”       USCIS will continue to accept and to premium process H-1B petitions filed with Form I-907 premium requests prior to April 3, 2017.     Unlike prior similar suspensions of premium processing, this time premium processing is suspended for all types of H-1B petitions.

Reasons for Temporarily Suspending H-1B Premium Processing

The rationale behind this temporary suspension of the premium processing option for all H-1B petitions seems to be the anticipated heavy demand and high number of H-1B “cap” filing starting April 3, 2017 together with the fact that regular H-1B case processing times have been steadily going up with some H-1B petitions taking more than ten months to review and process.

All H-1B Petitions Filed On or After April 3, 2017 are Affected

We should highlight one more time that the temporary suspension of premium processing applies to all H-petitions, including new “cap” filings which are filed on or after April 3, 2017.    Other types of petitions filed on Form I-129 (such as TN, O-1, L-1, among others) are not affected and continue to have the premium processing option.   Similarly, H-1B petitions filed prior to April 3, 2017 should be able to request premium processing.

Why April 3, 2017?    This is the first date USCIS will accept petitions filed under the new fiscal year’s annual cap and it is expected that there will be heavy demand with hundreds of thousands of H-1B petitions filed in a period of a few days on or shortly after April 3, 2017.

Premium Processing Fee Refunds Will be Offered to Affected Cases

For H-1B petitions filed on or after April 3, 2017, USCIS will reject the premium processing component assuming the premium processing fee is in the form of a separate filing fee check.   If a case includes the all filing fees, including the premium processing fee, in a single check, USCIS will reject the entire filing which will be fatal for H-1B cap cases.   For H-1B premium processing cases filed prior to April 3, 2017, USCIS will refund the premium processing fee if USCIS is unable to act on the case within 15 calendar days of the date of filing.

What Else May Be Affected?

Given this unexpected announcement and the fact that we expect high number of H-1B filings on April 3, 2017, it is likely that the USCIS processing timelines across the board may increase, at least at USCIS Service Centers which are dealing with H-1B petitions (California, Nebraska and Vermont).   We have observed increased in processing times across the board for almost all types of USCIS filings and we urge proper planning and early filing to avoid problems caused by any processing delays and the lack of the premium processing option.

Alternatives for Faster Processing

The government has retained the option to have a regular processing H-1B case be granted “expedited”  review based on a set of criteria.     According to USCIS,  petitioners may submit a request to expedite an H-1B petition if they meet any of the expedite criteria.   USCIS will expect the petitioner to demonstrate that they meet at least one of the criteria and such request should be documented and supported by evidence.   USCIS warns that the decision to expedite a case is discretionary and made on a case-by-case basis.

H-1B Cap Strategies

Without premium processing option, all H-1B “cap”  cases will take longer to process and for the lottery results to be released.   Previously,  after the H-1B cap lottery is conducted early in April,  premium processing cases are issued receipt notices first (via email, normally) and towards late April.    This meant that premium processing was the way to know if a case was picked by the lottery as early as possible and towards late April or early May.    This year, with no premium processing, H-1B cap applicants may need to wait until late May, June or even July to find out if their case has been picked for review under the H-1B lottery.

H-1B cap applicants who are in the U.S. pursuant to F-1 OPT status should continue to be able to take advantage of the OPT cap-gap rule while the application is pending, including waiting for the lottery results.

Conclusion

This extraordinary (and unexpected, at least to us) announcement suggests that USCIS is bracing for a very high rate of H-1B petitions under the cap on April 3, 2017.   While this suspension will no doubt affect a number of H-1B applicants, there are ways to plan for this suspension and pursue alternatives and backup options.     We hope that the positive news of this development would be a general decrease in processing times across all H-1B cases (perhaps even across all USCIS types of cases).

We urge H-1B employers who have filed or are planning to file H-1B petitions, including extensions or change of status applications, to plan carefully and consider the possibility that H-1B petition adjudication times would increase.    For non-H-1B cap petitions,   USCIS will accept premium processing between the date of the announcement and April 3, 2017 so we urge applicants to consider advancing planned premium processing filings prior to April 3rd.

Please do not hesitate to contact us if we can be of any help in preparing for this unanticipated H-1B premium processing disruption of service.    We are also assisting many H-1B cap applicants and we are happy to offer information and a quote for our services   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

By | Last Updated: May 20th, 2017| Categories: Articles, Employers, H-1B, News, News Alert|

About the Author: Dimo Michailov

Dimo Michailov
Dimo has over 15 years of experience in US immigration including employment-based immigration benefits, corporate compliance and family based immigration. He represents corporate and individual clients in a wide range of cross-border immigration matters including mobility of key foreign executives and managers, specialized knowledge workers, and foreign nationals with extraordinary ability.

The Capitol Immigration Law Group has been serving the business community for over 15 years and is one of the most widely respected immigration law firms focused solely on U.S. employment-based immigration.   Disclaimer:  we make all efforts to provide timely and accurate information; however, the information in this article may become outdated or may not be applicable to a specific set of facts.  It is not to be construed as legal advice.