USCIS has just officially confirmed as of today, October 3, 2017, they have reinstated the premium processing service for all types of H-1B petitions. Petitions filed under the premium processing service are given a response by USCIS within 15 calendar days. Similarly, pending “regular processing” H-1B petitions can be “upgraded” to premium processing service.
Caution: Avoid the Premium Processing Rush
We would like to caution our readers and clients to avoid rushing to file premium processing cases just because the service is available. Due to the pent-up demand for premium processing cases over the last few months, we expect a significant volume of new H-1B premium processing filings and “upgrades” to reach USCIS within the next few weeks and this is likely to cause delays and possible backlogs at USCIS. Ultimately, this rush may affect the adjudication of cases as well.
In cases where premium processing review time and a decision may not be immediately required, we suggest our readers and clients consider waiting for a few weeks before the “dust settles” and then filing for premium processing (new or upgrades).
Background of the H-1B Premium Processing Service Suspension
Effective April 3, 2017, USCIS suspended the premium processing service for all H-1B petitions and for a period of “up to six months.” This suspension was very broad: petitioners were not 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.” Unlike prior similar suspensions of premium processing, this time premium processing was suspended for all types of H-1B petitions.
This suspension had caused significant disruption to many H-1B employers and employees, many of whom have had to postpone important plans or actions due to the extremely long H-1B regular processing times.
The rationale behind this temporary suspension of the premium processing option for all H-1B petitions seems to have been the anticipated heavy demand and high number of H-1B “cap” filings 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.
Premium Processing Was Already Reinstated for Pending 2018 H-1B Cap Petitions and for Cap-Exempt Employers
As of September 18, 2017, premium processing had been reinstated for pending 2018 H-1B cap petitions. Since the H-1B cap for fiscal year 2018 has been reached and no new petitions can be filed, USCIS essentially allowed pending H-1B cap petitions to be upgraded to premium processing.
Previously, as of July 24, 2017, premium processing was reinstated for H-1B petitions filed by cap-exempt employers such as: (a) an institution of higher education; (b) a nonprofit related to or affiliated with an institution of higher education; or (c) a nonprofit research or governmental research organization. Similarly, premium processing was also reinstated for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity (even if the actual employer is not such an employer).
Under the terms of the premium processing service, once USCIS receives the premium processing upgrade request, they would issue a decision within 15 calendar days.
The extraordinary suspension of premium processing for a number of months has caused significant hardship on many employers and employees and we welcome the reinstatement of full premium processing service for all types of H-1B petitions.
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 timings of such applications and the reinstatement of premium processing service. Additionally, pending H-1B cases will also be “upgradeable” to premium processing service.