Beginning on April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will suspend processing of all H-1B petitions. USCIS reports the suspension may last up to six months. The suspension applies to all H-1B petitions filed on or after April 3, 2017, and as H-1B petitions filed as part of this year’s H-1B lottery may not be received prior to April 3rd, all H-1B lottery petitions are also included in the suspension. According to USCIS, the suspension is needed to better allocate adjudications resources and help reduce overall H-1B processing times, which are presently running six to eight months.
What is Premium Processing?
Premium processing service provides expedited processing for certain employment-based petitions and applications. The fee for premium processing is $1,225—which is in addition to the other required government application filing fees. USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee.
Some Practical Implications of the Suspension
Employees in H-1B status are allowed to remain and continue working for up to 240 days while an H-1B extension is processed. However, many states link the expiration date of a driver’s license to the end date of approved H-1B employment, and some of these states will not allow for an extension of the license without an approved (rather than filed) H-1B extension. The premium processing suspension may leave H-1B nonimmigrants without legal driving privileges which could impact their ability to travel to/from work.
In addition, H-1B employees traveling outside the United States require a valid H-1B visa stamp issued by a U.S. Consulate to return to the U.S. In order to apply for a visa an H-1B employee must have a current H-1B approval, which means that employees with H-1B extensions on file with USCIS, but not yet approved, will not be allowed to renew H-1B visas. The suspension of premium processing may require employers to defer H-1B employees’ international travel to avoid having employees stranded outside the U.S. waiting for H-1B approval under regular processing.
Requesting Expedited Processing During the Suspension
While premium processing is suspended employers may submit a request to expedite an H-1B petition if they meet the following criteria: severe financial loss, emergency situation, humanitarian reasons, a nonprofit organization whose request is in furtherance of the cultural and social interests of the United States, USCIS error, or a compelling interest of USCIS. USCIS will review expedite requests on a case-by-case basis and requests will be granted at the discretion of USCIS leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. At this point, we do not know how generous USCIS may be in granting expedited processing.
Steps for Employers to Take
We recommend employers immediately review all employees in H-1B status and determine if extensions should be filed under premium processing before the April 3, 2017 suspension takes effect. Employers may file an extension within 180 days from the end date of H-1B status. In addition, employers should review international travel plans for all H-1B employees for the coming year and determine whether travel is advisable or should be delayed.
Finally, employers should determine whether H-1B employees may be delayed in renewing driver’s licenses and develop transportation contingencies to ensure H-1B employees are able to make it to work.