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Beginning April 3, employers will no longer be able to use the government's expedited processing program for H-1B visa cases.
The United States Citizenship and Immigration Services agency (USCIS) is temporarily suspending premium processing for all H-1B petitions, including those counted against the annual H-1B numerical cap, for up to six months, according to an announcement on March 3.
The premium processing option allows employers to pay an additional $1,225 filing fee to USCIS in return for a guarantee that the agency will issue a decision on the case within 15 calendar days. That's an advantage for employers seeking certainty when planning for their workforce needs for the coming year.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
The suspension will delay adjudication of all H-1B cap-subject cases filed for fiscal year (FY) 2018, as well as H-1B petitions that are exempt from the annual quota, like extensions of stay, and change-of-employer requests.
"This is particularly upsetting for cap-subject H-1Bs," said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law. The start date for filing cap-subject H-1B petitions falls on April 3 this year.
"The timing makes it clear to me that it is related to cap-filing season," said Justin Storch, manager of agency liaison at the Council for Global Immigration, an affiliate of the Society for Human Resource Management. "In previous H-1B cap seasons, USCIS delayed premium processing of cap cases for a period of time while the [H-1B visa] lottery was being run," he said. "This year, USCIS is taking a much broader approach in suspending premium processing across the board. It's definitely more expansive."
Addressing the Pending Backlog
USCIS explained that the suspension will help reduce overall H-1B processing times and allow the agency to catch up on the backlog of pending petitions, especially H-1B extension petitions nearing 240 days past expiration, when continued employment authorization can be in peril.
"By temporarily suspending premium processing, USCIS intends to adjudicate long-pending H-1B petitions that are the result of the high volume of filed petitions and increased number of premium processing requests in recent years," said Julie Pearl, CEO and managing attorney of the Pearl Law Group, based in the San Francisco Bay area.
"The backlogs are unprecedented, and those employers who have been patiently waiting in line but not paying the premium processing fees have been suffering," said Kim Thompson, a partner in the Atlanta office of law firm Fisher Phillips. "We have seen very long waits for H-1B extensions that were filed under regular processing, and this has caused problems with those employers and employees who cannot afford to pay the premium processing fee. Some have been putting travel plans on hold because they have an expired visa stamp and will not be able to apply for a new one until USCIS approves the extension petition."
Whether the suspension of premium processing will cure the backlog issues and get the petition process back on track remains to be seen, she added.
As an example, current USCIS processing times for H-1B petitions range from approximately six to nine months at the Vermont and California service centers, said Beth Carlson, an immigration attorney and counsel in the Minneapolis office of Faegre Baker Daniels.
For H-1B cap cases, the suspension will mean a longer wait for employers wondering if their employee has been selected for the visa lottery, and once selected, "it could mean that we may not have approval of the case by Oct. 1, 2017," Thompson said.
Storch advised employers to identify any cases which might require premium processing prior to April 3 and consider filing those cases with premium processing by that date.
"Premium processing may still be used for cases received by USCIS prior to April 3 and beyond April 3 for categories other than H-1B for which premium processing is available," he said.
Pearl added that particular attention should be given to "last-chance employees" like students holding F-1 visas who are applying for an H-1B. "Upon notification of the H-1B cap rejection, they may have very little notice that their employment will need to end," she said. "However, absent other visa options, these F-1 students have a 60-day grace period to depart the U.S."
While premium processing is suspended, employers may submit a request to expedite an H-1B petition if they meet the criteria on the agency's Expedite Criteria webpage, but the threshold for satisfying those criteria is high, according to immigration attorneys.
"Expedite requests under these criteria are not typically approved, and this will likely be the case when premium processing is not available," Carlson said.
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