On March 3, 2017, USCIS announced that it would place a temporary suspension of premium processing service for all H-1B cases starting April 3, 2017 and lasting for up to six months. USCIS has indicated that the suspension of premium processing would allow the agency to staff long-pending matters and prioritize extensions nearing the 240-day mark and, thereby, reduce the overall H-1B processing times. Regardless, this development will have significant effect on many of our clients’ existing plans and requires immediate contingency planning for those affected.
First, it’s important to note that USCIS has temporarily suspended premium processing service in past years, but this is the first year that it has affected just H-1B cases. To be clear, this suspension does not affect other visa classifications besides H-1B. In the past, these suspensions have been much less than six months, but based upon the specific mention of a possible “six month” suspension, there is reason to believe that this year’s premium processing suspension will have longer effect than those in previous years. The possible extended length of this suspension could have repercussions for those H-1B applicants who absolutely need to have new H-1 approvals by October 1, 2017. We will be monitoring the news and timelines closely to ensure that either a premium processing upgrade is inter-filed for those who need it as soon as the suspension ends or that those clients who are affected are properly advised about the legal ramifications of a delayed decision. We also understand USCIS will entertain expedite requests in certain situations.
Second, as a practical matter, we will no longer be able to file premium processing for those H-1B CAP cases who had previously planned to do so. Those applicants who were opting to file their H-1B CAP petitions with premium processing would have likely known if their case was receipted possibly three weeks earlier than those filed without Premium Processing. Such applicants who were seeking to discern whether to rely upon F-1 Cap Gap or file a precautionary OPT STEM extension will no longer have earlier access to a receipt on their CAP filing or an earlier approval. In other words, such applicants are encouraged to either pre-emptively file a precautionary OPT STEM extension or to wait until the result of the lottery to make the decision on whether to file the OPT STEM extension or take other precautions to ensure continuing status. Please note that OPT authorizations are automatically extended until June 1, 2017 simply by filing the H-1B request and notifying the school of the filing.
Third, starting April 3, 2017 and for as many as six months thereafter, we will no longer be able to file premium processing for H-1B change of employers/transfers and extensions petitions. We are therefore making a push to file all such H-1B petitions prior to April 3, 2017. If you have a case to be filed in the next four weeks that may benefit from premium processing we will discuss the option of using premium processing with you. For H-1B change of employer petitions, it is important to note that employees may begin to work for their new petitioning employer prior to having an approval pursuant to AC-21 portability. While we understand that many employees prefer to have an approval in hand by the time they change employers, in all the years we’ve filed AC-21 cases we have never had an H-1 denied for a tech worker using AC-21 portability. We, therefore, will be happy to continue to advise and assist with such transfers during this suspension period. When the suspension has been lifted, we will have the option of making an upgrade to premium processing for those employees who have begun work pursuant to AC-21 portability.
We will be continually providing updates as necessary and we will be identifying those cases affected by this change and affirmatively reaching out for contingency planning purposes. Our obvious hope is that USCIS gets its house in order and cleans up its backlog, returns case processing to a reasonable timeframe, and lifts this premium processing suspension as soon as possible.
** 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 **