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Topics Immigration

USCIS Temporarily Suspends Premium Processing of H-1B Petitions

Date   Mar 8, 2017

USCIS has announced that it will temporarily suspend Premium Processing for all H-1B petitions, beginning April 3, 2017. The suspension will apply to all H-1B petitions, including new H-1B cases filed under the FY18 H-1B cap, as well as extensions, amendments, and other cap-exempt petitions. According to USCIS, the temporary suspension is being implemented to help the agency reduce overall H-1B processing times, and it could last up to six months.

The Premium Processing program allows petitions in qualifying categories to be adjudicated within 15 calendar days for an additional filing fee. By contrast, the standard H-1B processing time usually ranges between three to six months but could take longer depending on existing backlogs and availability of resources. While Premium Processing is suspended, USCIS will reject any Form I-907 Request for Premium Processing filed with an H-1B petition. Requesting Premium Processing for an H-1B cap case while the program is suspended could lead to the whole petition being rejected, likely causing the petition to be excluded from the H-1B cap lottery. It is not possible to file an H-1B cap case in advance of the suspension. The suspension of Premium Processing for H-1B petitions has several possible impacts including work authorization for the principal, work authorization for a dependent H-4 spouse, driver’s license renewals and international travel ability, which are discussed further below.

Impact for Beneficiaries of First-Time H-1B Petitions Filed Under the FY18 Annual Cap:

Impact on International Travel: For foreign nationals who hold a different nonimmigrant status who will be filing first-time H-1B petitions starting April 3, 2017, under the annual H-1B filing cap, there are several potential issues to consider. If the foreign person must travel overseas during the pendency of an H-1B petition requesting a seamless change of status from his current nonimmigrant status to H-1B, the “change of status” will be deemed abandoned, requiring additional steps and costs for the employer to activate the H-1B status.

Impact on Work Authorization and International Travel for F-1 International Students During “Cap Gap” Period:  

For international F-1 students who timely file an H-1B FY18 cap petition and are granted “cap gap” work authorization to extend school-issued OPT work authorization until September 30, 2017, if the H-1B petition is still pending on October 1, 2017, the F-1 student must stop working until the H-1B petition is approved.

As for international travel during any “cap gap” period, F-1 students should avoid it altogether as they would be deemed to have abandoned the request for a seamless change of status from F-1 to H-1B once the petition is approved, and they would lose the “cap gap” work authorization and be stuck outside the U.S. until the H-1B petition is approved. They would have to wait overseas for the H-1B petition to be approved and then apply for an H-1B visa at a U.S. consulate overseas to return to the U.S.  

Impact and Considerations for Those who are Filing H-1B Extensions or Amendments:

H-1B Work Authorization: H-1B extensions can be filed a maximum of six months prior to the expiration of the beneficiary’s current period of stay, but lately, USCIS has not been able to adjudicate H-1B petitions within six months. Fortunately, H-1B workers are allowed to work for 240 days beyond the expiration of their last H-1B petition if an extension has been timely filed. But if the H-1B petition is not approved within that 240-day period and Premium Processing is still suspended, there would be a gap in the H-1B work status, and the worker could not work until the H-1B petition is approved.

Driver’s License Renewals: Given the extremely long processing times for non-expedited H-1B petitions, some H-1B workers may not be able to renew their driver’s licenses on time. Driver’s license renewal procedures are state-specific. While some states allow foreign workers to renew driver’s licenses based on just a government Receipt Notice confirming the proper filing of a work visa petition, other states require the foreign worker to present the work visa petition Approval Notice to renew a driver’s license. Therefore, the suspension of Premium Processing for H-1B petitions could result in a foreign worker’s inability to renew a driver’s license on time.

H-4 Spouse EAD Work Permit Renewal: For H-4 dependent spouses who work pursuant to an employment authorization document (EAD), the EAD cannot be renewed until the underlying H-1B/H-4 extension is approved. Therefore, the suspension of Premium Processing for H-1B petitions could result in a gap of the H-4 spouse’s work authorization if the current EAD expires while the H-1B/H-4 extensions are pending. In that case, the H-4 spouse would have to stop working until the EAD is approved.  

The Bottom Line: The temporary suspension of Premium Processing service for H-1B petitions raises several possible consequences for H-1B beneficiaries including the potential for gaps in existing work authorization, restrictions on international travel, delays in driver’s license renewals, and gaps in work authorization for H-4 spouses and other foreign workers. Given the April 3, 2017, effective date of the suspension, absolutely no H-1B FY18 cap-subject petition can be filed under Premium Processing. Because the possible impacts are wide and varied, you should seek advice from immigration counsel to evaluate the specific circumstances of your cases.

Employers who have pending or upcoming non-cap H-1B cases should file at the earliest point possible (generally 180 days in advance of the foreign worker’s current nonimmigrant status expiration). If an employer is within the 180-day H-1B extension filing period now, it should strongly consider filing with Premium Processing before the suspension takes effect on April 3, 2017. H-4 spouses who have a pending EAD work permit renewal application filed concurrently with a pending H-1B/H-4 extension should pursue Premium Processing prior to April 3, 2017, to best avoid gaps in work authorization. F-1 international students who will be filing H-1B cap-subject cases should seek legal advice before traveling overseas between April 3, 2017, and October 1 (or whenever the H-1B FY18 cap petition is approved). H-1B beneficiaries should review their states’ rules regarding driver’s license renewals to determine whether they will be required to present an approval notice to renew their driver’s licenses, and in case of H-1B processing delays, make alternative arrangements for transportation.

If you have questions regarding the suspension and how it may impact your H-1B cases or whether to file for Premium Processing before the suspension begins, please contact Geetha Adinata, gadinata@fordharrison.com; Loren Locke, llocke@fordharrison.com; or any member of FordHarrison’s Business Immigration Practice Group. You may also contact the FordHarrison attorney with whom you usually work.