On September 11, 2018, USCIS extended and expanded the suspension of Premium Processing for certain H-1B cases. This extended and expanded suspension encompasses petitions seeking to change employers, amend petitions where there have been material changes in employment, and new employment petitions. This necessarily includes petitions that were submitted for the 2019 fiscal year. The suspension is expected to last until February 19, 2019 in an effort to process long-pending petitions, be responsive to time-sensitive start dates, and prioritize extension cases that are nearly the 240-day mark.
However, this suspension leaves many employers and foreign nationals with little recourse to get petitions approved that are time-sensitive. Many foreign nationals are finding themselves without work authorization as a result of the suspension. The only method currently available is to request an expedite of the petition due to one of the following criteria: severe financial loss to the company or person; emergency situation; humanitarian reasons; the requestor is a nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or National Interest Situation (requiring the request come from an official U.S. government entity); USCIS error; or compelling interest of USCIS. A clearer understanding of how USCIS interprets these criteria in relation to an expedite suggests that the one and only criteria our clients may be able to meet in non-immigrant filings is related to severe financial harm to the employer or employee, or both.
Expedite requests are granted at USCIS’ discretion and can be difficult to get. As such, evidence submitted to our office in consideration of such requests will be evaluated for its evidentiary strength in an attempt to make a compelling case. In considering such an attempt clients should ask what the financial impact is of losing a key employee for several months, or from the employee’s perspective, if they are about to be unemployed, what’s the economic impact of being without a job for several months. We are happy to review such evidence and see if there is a viable option. Expedites are most likely in the situation where we are dealing with either students in “cap gap” while waiting for a new H-1B cap approval, or if there are unusual case issues that prevent a new H-1B transfer from taking advantage of AC21 portability. We will pay close attention to both how USCIS is adjudicating the expedite criteria as well as the return of premium processing as an option for H-1B filings.
We encourage all clients to consider attending our upcoming webinar series related to recent changes in immigration policies and processing to be held on Wednesday October 3rd at 11am Pacific (1pm CST) or Thursday October 18th at 11am Pacific (1pm CST). Please follow this link to register for the date that suits your schedule. Managing Partner David Brown will highlight all of the key changes in a 45 minute presentation followed by an extended Q&A session. We are holding this information session to ensure that all clients have their questions answered and to help dispel any myths about the impact of current policies. The information shared is intended to help all of our clients become more knowledgeable of current issues so we can all work more cohesively to avoid issues with the government. If you have a specific issue you wish David to cover in his presentation please email firstname.lastname@example.org in advance of the presentation.
USCIS has announced that, starting October 1, premium processing fees will go up to $1,410. This is almost a 15% increase from the current fee, which is $1,225. Filing an application with premium processing requires USCIS to make a decision on the case within 15 days, and as we reported in our recent broadcast email, USCIS recently announced that premium processing is suspended for most H-1B applications until February 19, 2019. USCIS will still accept applications under the current fee received prior to October 1.
As you may recall, the September 2018 visa bulletin showed retrogressions in many visa categories. The October 2018 visa bulletin shows recovery for several of these categories, but some remain retrogressed despite this now being the start of a new fiscal year. There is still a priority date for EB-1 Worldwide, but it moves forward to April 1, 2017. EB-1 China and EB-1 India move forward to June 1, 2016, and EB-1 Philippines also moves forward to April 1, 2017. EB-2 China has recovered and moves forward over two years to April 1, 2015, and EB-2 India has also recovered and moves forward to March 26, 2009. EB-3 China continues to move forward, to June 1, 2015, and both EB-3 India and EB-3 Philippines return to their August 2018 priority dates of January 1, 2009 and June 1, 2017 respectively. EB-2 and EB-3 Worldwide are once again current. It is anticipated that EB-1 priority dates will remain retrogressed in November as well, with them likely becoming current in December’s bulletin.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **