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Legal Update

US Citizenship & Immigration Services (“USCIS”) Will Temporarily Suspend Premium Processing for All H-1B Petitions Starting April 3, 2017

6 March 2017
Mayer Brown Legal Update

USCIS has announced that it will temporarily suspend premium processing for all H-1B petitions received by its Service Centers as of April 3, 2017. Accordingly, as of April 3, USCIS will reject any Form I-907, “Request for Premium Processing Service” for a Form I-129, Petition for a Nonimmigrant Worker, which requests the H-1B nonimmigrant classification.

Question 1: Will the temporary suspension apply to all H-1B petitions received by USCIS as of April 3, 2017?

Yes. The suspension will apply to all H-1B petitions, including:

  • H-1B petitions subject to the annual fiscal year (“FY”) quota (“cap-subject” H-1B petitions);
  • H-1B petitions exempt from the annual quota (“cap-exempt” H-1B petitions);
  • H-1B petitions for extension of status;
  • H-1B petitions for change of employer; and
  • H-1B petitions for amendment of status.

Question 2: How does this affect the annual selection process for Fiscal Year (FY) 2018 cap-subject petitions?

The suspension does not affect the process USCIS has in place for selection of cap-subject petitions, which will continue to be addressed according to the random lottery selection process if, as expected, USCIS receives more petitions than the annual quota allows.1 Since FY 2018 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY2018 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). As noted above, the suspension also applies to petitions that may be cap-exempt.

Question 3: If I file an H-1B-related premium processing request (Form I-907) that is received by USCIS prior to April 3, 2017, will USCIS process it within 15 days?

Maybe, but it is not guaranteed. USCIS has indicated:

We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

See USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions (emphasis added).

Question 4: If my H-1B-related premium processing request (Form I-907) arrives at USCIS after April 3, 2017, what will happen?

While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.

Question 5: Will the suspension of premium processing affect any other categories, such as L-1 petitions or I-140 immigrant petitions?

Not at this time. USCIS has confirmed that the temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129 and has not referenced any suspension of premium processing for eligible immigrant petitions filed on Form I-140.

Question 6: Will there be any ability to request expedited processing for H-1B petitions after April 3, 2017, during the suspension of premium processing?

Yes, USCIS will review expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. Petitioners seeking an expedite request must demonstrate fully that they meet at least one of the expedite criteria, which include:

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official US government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.​

See Expedite Criteria.

Question 7: Do we know how long regular processing of H-1B petitions will take?

We do not know the length of time. USCIS has indicated the suspension of premium processing will help the Service Centers clear out longstanding bottlenecks in the regular processing queues, but as USCIS will be deprived of the additional revenues H-1B premium processing filings typically generate, it may also be less able to bring on contract help to manage high volume, such as that from the annual cap filings.

Question 8: What actions should employers take in response to the upcoming suspension?

Employers should take three prioritized actions:

  • First, they should notify H-1B petition candidates of the change in USCIS premium processing and advise that the employer will continue to process its employees’ cases in the most prompt and practical way possible. If the employer has an “ask mobility” e-hotline, it should make that e-hotline available to employees with particular concerns about timing of their petitions, including with regard to their ability to travel internationally while a petition is pending.
  • Second, employers should identify and prioritize time-sensitive petitions. Extension candidates, for example, will lose their right to travel internationally and may also be precluded from renewing driver’s licenses once their original H-1B period of authorized status expires. While a 240-day grace period allows individuals seeking extension of H-1B (and other employment-based nonimmigrants) status to remain and work in the United States while their extension petition is pending, it will not allow them to leave and reenter the country during the grace period. Employers may, accordingly, wish to begin extension filings as early as feasible.
  • Third, employers should ensure that any premium processing requests for H-1B petitions submitted prior to April 3 include separate checks for the underlying petition filing and the Form I-907 “Request for Premium Processing.” As noted above, if the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms if it is unable to provide premium processing.
1 If USCIS receives more than enough petitions to meet the regular cap of 65,000 during the first five business days of April, i.e., April 3–7, 2017, it will use a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. An exemption from the H-1B cap is available for 20,000 petitions filed for beneficiaries who have obtained a US master’s degree or higher (commonly known as the “advanced degree exemption”). If USCIS receives more than 20,000 petitions requesting an advanced degree exemption during the first five business days, it will use a lottery to randomly select 20,000 petitions for the advanced degree exemption before conducting the lottery to select petitions under the regular cap. Petitions not selected for the advanced degree exemption will be entered into the lottery for the regular cap.
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