Temporary Suspension of Premium Processing Option for All H 1B Petitions

In the evening of March 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") announced that its premium processing service will be temporarily suspended for all H‑1B petitions filed on or after April 3, 2017.  Currently, certain petitioners and applicants for employment‑related immigration benefits may take advantage of the premium processing service, a program wherein USCIS will make an initial decision on an application or petition within 15 days of receiving an additional fee of $1,225 from the petitioner or applicant.  This feature will now be temporarily suspended until further notice for all H-1B petitions filed on or after April 3, 2017, including all H‑1B cap petitions, new H‑1B cap‑exempt petitions, H‑1B extension petitions, H‑1B amendment petitions and H‑1B change of employer petitions.  USCIS warns the suspension may last up to six months.

For the present, the suspension will not apply to any other nonimmigrant (L‑1, O‑1, TN, etc.) or immigrant (I‑140, etc.) categories or processes.  USCIS stated the suspension will allow it to catch up on its massive backlog of filed H‑1B petitions.  USCIS will continue to accept and process premium processing requests for H‑1B petitions filed before April 3, 2017.  After that date, USCIS will only consider requests to expedite H‑1B petitions that meet very strict expedite criteria (e.g., severe economic harm, humanitarian concerns, etc.) on a case-by-case basis until the suspension is lifted.

With current H‑1B processing times approaching nine months, the suspension of the premium processing service will almost certainly result in hardships for H‑1B employers and workers.  However, a few helpful provisions in current immigration rules and regulations should be kept in mind.  First, the filing of a valid petition to extend an existing H‑1B worker's status automatically extends his/her authorization to work for an additional 240 days from the date of his/her current H‑1B expiration.  Second, current H‑1B status holders are automatically allowed to begin employment with a new employer upon the new employer's filing of a valid H‑1B petition with USCIS and before the new H‑1B petition is approved, provided the H‑1B worker has maintained his/her current H‑1B status until the new employer files its H‑1B petition, the H‑1B worker has H‑1B time available, and the H‑1B worker is not changing from a cap‑exempt to a cap‑subject employer.

There will undoubtedly be some complications for those who employ H-1B workers as well as for H-1B workers themselves as a result of the announced temporary suspension of the premium processing service.  We therefore advise H‑1B employers and workers to meet with their immigration counsel to develop strategies to minimize the impact of the temporary suspension of the premium processing service for the H‑1B category.