This evening, USCIS unexpectedly announced the temporary suspension of premium processing service for all H-1B petitions filed on or after April 3, 2017. Premium processing is a USCIS program that provides for a 15 day initial review in exchange for a $1,225 filing fee. USCIS has indicated that this premium processing suspension may last for up to six months.
The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This includes extension and amendment petitions. Further, since new cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed under the fiscal year 2018 H-1B regular and master’s degree caps. The suspension also applies to petitions that may be cap-exempt, such as those filed by universities and other cap-exempt employers.
USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may continue to utilize the expedited service.
According to USCIS, this suspension of premium processing is being implemented in order to help reduce overall H-1B processing times, which are currently running close to a full year in some instances. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. USCIS will also prioritize processing of H-1B extension petitions that are nearing 240 days pending, since the automatic extension of employment authorization only lasts for 240 days after the prior petition expiration.
During the premium processing suspension, petitioners may still request expedited processing if they meet certain criteria. USCIS reviews expedite requests on a case-by-case basis and requests are granted at their discretion. USCIS may expedite a petition or application if it meets one or more of the following criteria:
- 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 national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
- USCIS error; or
- Compelling interest of USCIS.
In our experience, expedite requests are rarely granted.
Many H-1B employers routinely utilize premium processing service, in part because USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. This unavailability of premium processing will present significant challenges, as lengthy H-1B processing times affect employees’ ability to travel and obtain new visas, renew driver’s licenses, and in some cases, begin working. Mintz Levin will work closely with clients to try to minimize the impact of this development, and employers should consider filing extension petitions as early as possible in the six-month filing window in order to minimize the disruption and inconvenience this will undoubtedly cause.