Premium Processing for All H-1B Cap Cases Delayed Until September

 

Roy Maurer By Roy Maurer March 21, 2018
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​Employers intending to file cap-subject petitions for H-1B guest workers this year will have to go without an expedited processing option until Sept. 10.

U.S. Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend premium processing for all cap-subject petitions during the fiscal year 2019 filing season, which begins April 2. Premium processing allows employers to pay an extra fee for their petitions to be processed within 15 days.

It will apply only to petitions subject to the annual visa cap and not to all H-1B petitions, said USCIS spokeswoman Joanne Talbot.

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Last year the agency suspended premium processing for all H-1B petitions from the start of the cap season so that it could clear a backlog, delaying approvals in many cases. The expedited option was phased back in over the next several months and was finally made available to all petitioners by Oct. 3.

"Premium processing will be delayed … to give USCIS sufficient time to take in the expected large numbers of filings," said Scott J. FitzGerald, a partner in the Boston office of the global immigration law firm Fragomen. "We do not anticipate that this will delay notification of whether such cases have been selected in the H-1B lottery. Instead, this will delay the time in which the case is approved, subject to a request for evidence, or denied."

It's typical for USCIS to delay premium processing each year to deal with the influx of H-1B petitions. For the past several years, employers have submitted around 200,000 visa petitions despite only 85,000 visas being available each year.

In addition to being notified early on if their petitions are selected from the H-1B visa lottery, employers who pay for premium processing are supposed to receive a quicker evaluation of their petitions, which includes being sent any requests for evidence (RFEs).

That could be very helpful as signs from the Trump administration point to enhanced scrutiny of petitions this year. RFEs increased in 2017, while approval rates for H-1B visas dropped significantly.

"The fact that USCIS is only now finishing up its processing of H-1B cap cases filed at this time last year is absolutely unprecedented," FitzGerald said. "These delays are presumably related to the substantial increase in the issuance of RFEs for those cases. The fact that these cases, filed under regular processing, are receiving final determinations almost a year after they have been filed and almost five months after the requested start date [Oct. 1] is disappointing and seems a clear reflection of the agency's new and tougher mission statement."

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