The Business Immigration Group would like to alert you to the following developments surrounding the USCIS suspension of premium processing of H-1B extension petitions and the implementation of the H-4 employment authorization regulations.

USCIS Suspenss Premium Processing of H-1B Extension Petitions

Earlier this week, without any notice, U.S. Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend Premium Processing -- a service that permits employers to request adjudication of petitions within 15 calendar days for an additional $1,225 fee --of all H-1B extension petitions from May 26 through July 27. USCIS is taking this measure in order to devote additional resources to the upcoming H-4 employment authorization program (discussed below). It is uncertain whether USCIS will honor Premium Processing requests filed with H-1B extensions before May 26 and still pending as of that date. (USCIS has stated that it will refund the premium processing fee for all H-1B extensions submitted prior to May 26 that are not adjudicated within the 15-day premium processing period.)

The suspension may have a serious impact on H-1B employees with international travel plans this summer. While H-1B employees with a valid visa and I-94 can travel and re-enter while their extension petition is pending with USCIS, those with expired I-94s will be unable to return to the U.S. to resume employment until their petitions are approved. Please remember that individuals who are beneficiaries of H-1B petition extensions filed prior to their I-94 expiration are authorized to continue to work for their employer while the extension is pending for an additional 240 days following their I-94 expiration.

The Premium Processing suspension does not affect H-1B cap cases or H-1B cases not requesting an extension of stay. Additionally, it does not affect the availability of Premium Processing for other nonimmigrant petitions, including L-1s and O-1s.

We will be following the developments of this unexpected and inconvenient suspension of Premium Processing closely, and will provide updates as they become available.

USCIS Publishes Filing Guidance for H-4 EAD Applications

On May 20, 2015, USCIS published long-awaited guidance on the Employment Authorization for Certain H-4 Dependent Spouses final rule. Under this rule, which goes into effect on May 26, 2015, an H-4 will be eligible to apply for work authorization if his or her H-1B spouse either (1) is the beneficiary of an approved Form I-140 immigrant visa petition or (2) has been granted a one-year extension of his or her H-1B status based on 365 days or more having passed since the filing of an application for labor certification or an immigrant visa petition on his or her behalf. This is a very significant development, as eligible H-4s will now be able to work during the (often lengthy)  time gap between an H-1B spouse’s I-140 approval and the time the H-1B and H-4’s lawful permanent residence cases are filed (and work authorization issued pursuant to those filings is granted).

In its recently-released guidance, USCIS confirmed that an H-4 dependent spouse would still qualify for employment authorization even if the principal H-1B status holder is the beneficiary of an approved I-140 petition filed by a previous employer. USCIS also confirmed that H-4 employment authorization document (EAD) applications may be filed concurrently with H-4 extension or change of status requests (although USCIS stated that the EAD applications will not begin to be processed until the H-4 application is adjudicated). Once approved, the EAD will allow the holde to work for any employer in the United States and to obtain a Social Security number. Note that an eligible H-4 dependent spouse may not begin working until the I-765 application is approved and the EAD is in hand.

This new program is a key element of President Obama's Immigration Accountability Executive Action initiative announced on November 20, 2014. USCIS estimates that the number of individuals eligible to apply for employment authorization under this rule could exceed 175,000 in the first year of availability.