USCIS to Suspend Premium Processing of H-1B Petitions


Another week brings another unexpected new development in the world of immigration. On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that starting on April 3, 2017, it will temporarily suspend "premium processing" for H-1B petitions. By way of background, premium processing is a service USCIS offers for certain employment-based visa petitions. For an additional filing fee of $1,225, USCIS guarantees 15 calendar day processing and will issue an approval notice, a denial notice, a notice of intent to deny, or a request for evidence within the 15 calendar day period. Though unusual, this temporary suspension of premium processing is not unprecedented. For example, in 2015, USCIS suspended premium processing for certain categories of H-1B petitions for two months to allow the agency to implement the H-4 work authorization rule and adjudicate such applications.

Due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years, the processing time for non-premium H-1B petitions has ballooned from a few months to close to or even over a year, resulting in hardships for U.S. employers and their H-1B workers. USCIS stated that suspending premium processing will allow it to reduce the backlog of long-pending petitions and thus reduce overall H-1B processing times.

This temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, including those cap-subject H-1B petitions (lottery petitions) which are to be filed between April 3 and April 7 of 2017. USCIS noted that this suspension may last up to 6 months. During this temporary suspension, premium processing remains available for other nonimmigrant work visa categories filed on Form I-129, such as L-1 petition for intracompany transferees, and certain categories of immigrant petitions filed on Form I-140.

In light of the upcoming suspension and to mitigate its impact on current and prospective H-1B workers, employers should file H-1B petitions at the earliest permissible time. Under USCIS rules, H-1B petitions may be filed up to 6 months before the intended commencement of employment or the date of expiration of the prior authorized period of stay. In addition, employers should be aware that an F-1 student’s work authorization extension under cap-gap ends on September 30, 2017. Should H-1B petitions filed on behalf of such students remain pending as of October 1, 2017, those students may not continue employment until their status changes to H-1B. The temporary suspension may also have impact on many current and prospective H-1B employees’ ability to travel internationally or to renew a driver’s license if H-1B petitions filed on their behalf are not approved in time. It is important to consult immigration counsel and determine what options, if any, are available to help mitigate the impact of this suspension.

Henry Suelau and Lesley Amano contributed to this blog post.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Accessing this blog and reading its content does not create an attorney-client relationship with the author or with Miles & Stockbridge. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.