Starting on April 3, 2017, the United States Citizenship and Immigration Services (“USCIS”) will be temporarily suspending premium processing for H-1B petitions. According to the USCIS website, the suspension may last as long as six months. This suspension will likely cause difficulty and delays for employers who are looking to hire or are in the process of hiring foreign nationals.

Overview

Premium processing is an expedited processing service for certain types of immigration petitions. Upon payment of an additional filing fee, USCIS will render a decision on a case within 15 calendar days. This process is widely used by employers who prefer not to or cannot wait over six months for a petition to be adjudicated, which is roughly the current USCIS regular processing time.

USCIS explains that the temporary suspension is intended to reduce the number of cases that demand immediate decision, to permit the department to focus on cases that have been pending for a long time and are nearing the 240 day mark.

The Importance of 240 Days

Reaching the 240 day mark for a pending H-1B extension application is significant in light of 8 C.F.R. 274a. 12(b)(20). Beneficiaries whose H-1B status has expired may continue working pursuant to a timely filed H-1B extension petition with the same employer for up to 240 days. After 240 days, the beneficiary is no longer able to work until an approval has been granted. Because processing times have become so delayed, many foreign nationals are running up against this 240-day time constraint.

Who Is Affected?

  1. This will apply to all H-1B petitions filed on or after April 3.
  2. However, it will also apply to all cap subject petitions for the Fiscal Year 2018, which must be filed on April 1, 2017.

Practical Takeaways

Those who are already in H-1B status will be able to continue working for up to 240 days if an extension petition with the same employer is filed before his or her current, valid H-1B status expires. The real issue will be for employers who are looking to hire new H-1B workers who are currently in another immigration status or not in the United States at all.

This is particularly important for hospitals and medical providers who are planning on hiring new medical residents that are currently in F-1 status to be aware of. These petitions must be filed before April 3 to ensure a traditional program start date of July 1. Some states will not allow physicians with limited educational licenses to renew their license early enough to take advantage of premium processing within the next few weeks. For Conrad 30 Waiver recipients who are currently in J-1 status, this may mean that a July 1, 2017 start date will be impossible. These situations should be evaluated and further analyzed on a case-by-case basis before proceeding.