On March 3, the United States Citizenship and Immigration Services (USCIS) announced that they will be temporarily suspending “premium processing” for all H-1B petitions received on or after April 3, 2017. The suspension may last up to six months. Premium processing provides expedited processing for certain employment-based petitions and applications. Specifically, USCIS guarantees 15-calendar-day processing to those petitioners or applicants who choose to use this service. April 3 is also the first day that employers may file H-1B petitions under this fiscal year’s quota, or annual cap. Thus, no cap-subject H-1B petitions may apply for expedited processing.
The suspension of premium processing has occurred at various times in the past and does not affect the substantive petition. In other words, only the timing of the processing is affected – the adjudication itself is not affected. Given the current climate of immigration-related issues in the United States, there are numerous rumors floating about that further changes to the H-1B are forthcoming. While legislation regarding the H-1B and other nonimmigrant visa programs has been proposed, no changes to the H-1B visa system, beyond the suspension of premium processing, have been implemented.
Foreign national students who are working for U.S. employers pursuant to Optional Practical Training under their F-1 visas remain eligible for “cap-gap” protection. Under cap-gap protection, as long as an F-1 student’s H-1B visa petition is filed prior to the expiration of their employment authorization document, they may continue to work for their U.S. employer while the H-1B petition is pending with USCIS. This protection of status remains until either the H-1B petition is denied, or through September 30 if the H-1B petition is approved. (The H-1B validity period begins on October 1.)
Foreign nationals who are changing from one H-1B employer to another H-1B employer may still do so despite the suspension of premium processing. As soon as the H-1B petition is filed by the new employer, the foreign national may begin working with the new employer. The foreign national does not have to wait for the approval of the H-1B petition to transfer employers. Thus, the suspension of premium processing will have little effect on those cases. However, if a foreign national is switching from a cap-exempt employer (such as a public university or non-profit research institutions) to a cap-subject employer, the H-1B petition will have to go through the H-1B lottery.
Foreign nationals extending their H-1B status are similarly unaffected by the suspension of premium processing. Foreign nationals with pending H-1B extensions are allowed to continue working for their employers for 240 days after their present H-1B status expires. The employment authorization of these foreign nationals is automatically extended 240 days as long as the H-1B extension petition is filed prior to the expiration of the foreign national’s current status. However, foreign nationals with a pending H-1B extension or change-of-employer petition may have to delay travel until their H-1B petition is approved if their current H-1B visa has expired.
Thus, while the suspension of premium processing will slow down the USCIS’s processing of H-1B petitions, the overall effects of the suspension remain limited. Vedder Price will continue to closely monitor the situation and keep our clients abreast of this and any other immigration changes.