USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions
USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions. The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.
In addition, beginning Sept. 11, 2018, USCIS will be expanding this temporary suspension to include certain additional H-1B petitions. USCIS expects that these suspensions will also last until Feb. 19, 2019.
Which Cases are Affected?
As of Tuesday, September 11, 2018, premium processing requests will not be accepted for:
– H-1B change of employer petitions
– H-1B amendments
– H-1B extensions, if there is a change in the position being offered
Which Cases are NOT Affected?
Premium processing remains available for:
– H-1B extensions, as long as there is no change in the employment from the previous filings
– H-1B petitions filed by cap-exempt employers, such as universities, non-profit research institutions, or governmental research organizations.
– Any non-cap subject H-1B petitions, as long as the premium processing request reaches USCIS before September 11, 2018
– Other nonimmigrant visa classifications (such as L-1 and O-1)
Why is USCIS Temporarily Suspending Premium Processing for certain H-1B Petitions?
Per USCIS, the temporary suspension of premium processing services will help USCIS reduce overall H-1B processing times by allowing them to:
- Process long-pending petitions, which USCIS has been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
- Be responsive to petitions with time-sensitive start dates; and
- Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.
1) The employer’s H-1B case was already filed with a premium processing request and is currently pending. How will the suspension of premium processing impact this case?
There will be no impact. The case will continue to be processed under premium processing.
2) The employer is about to file an H-1B change of employer petition with premium processing. Can they still do this with the suspension?
If the case is filed (reaches USCIS) before September 11th with premium processing, then the case will not be impacted by the suspension. If the case is filed (reaches USCIS) on or after September 11th, then the case will be impacted by the suspension unless the employer is H-1B cap-exempt.
3) The employer wants to file an H-1B extension with premium processing on/after September 11th. Will the case be impacted by the suspension?
It depends on whether there is a change to the position being offered. If there is no change, then premium processing will be available. If there is a change to the position being offered, then the case will be impacted by the suspension.
4) Will a change in salary constitute a change in the position for premium processing suspension purposes?
An increase in salary is not considered a material change; premium processing would still be available A decrease in salary, or a change in job title or job location would constitute a material change; in that case, premium processing would be suspended.
5) What is an H-1B cap-exempt employer?
An H-1B cap-exempt employer is defined as an institution of higher education, a non-profit organization affiliated with an institution of higher education, a non-profit research institution, or governmental research organization.
6) How long will the premium processing suspension last?
Per USCIS, it is expected to last through February 19, 2019.
7) If there is an emergency situation and the case can’t be filed using premium processing because of the suspension, is there anything else that can be done to speed up the case?
While premium processing is suspended, employers may submit a request to expedite an H-1B petition if they meet the criteria on the ExpediteCriteria USCIS webpage. The employer must demonstrate that they meet at least one of the expedite criteria, and they should be prepared to submit documentary evidence to support their expedite request. Per USCIS, they review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership. In our experience, expedite requests are seldom granted absent a true emergency.
8) The employer wants to file a TN petition with USCIS under premium processing. Does the suspension impact the TN case?
No. The premium processing suspension does not impact non-H-1B cases.
Please contact your LAC attorney if you have additional questions regarding the H-1B premium processing suspension.