USCIS Announces Changes to Premium Processing of Certain H-1B Petitions

By Elizabeth Chatham

On August 28, U.S. Citizenship and Immigration Services (USCIS) announced that they will extend and expand the suspension of premium processing for certain types of H-1B petitions in order to prioritize time sensitive and extension cases nearing the end of the 240 day automatic extension of work authorization. The H-1B visa classification permits a foreign national to work in the U.S. on a temporary basis in a role that is considered a "specialty occupation," defined as requiring a minimum of a bachelor's degree. The premium processing service provides expedited processing for certain employment-based petitions, including an H-1B petition. Specifically, USCIS guarantees a 15 calendar day processing period to those petitioners who choose to use this service or USCIS will refund the $1,225 fee. The temporary suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions went into effect on April 2, 2018, and is expected to remain in effect until February 19, 2019. The suspension was previously thought to be lifted in September of this year.

In addition, all H-1B petitions filed at the Vermont Service Center and the California Service Center requesting a change in visa status, an amendment to a previously approved petition or a change of employer petition are not eligible for premium processing if filed after September 11, 2018. USCIS will accept premium processing requests filed before September 11, 2018. USCIS will refund premium processing if the Form I-907 requesting premium processing was filed before September 11, 2018, and USCIS did not take adjudicative action within the 15 calendar day processing period.

Certain H-1B petitions may still use premium processing. They include cap-exempt petitions filed exclusively at the California Service Center or the Nebraska Service Center by employers requesting an extension of previously approved status without a change with the same employer. Employers may to continue to use premium processing for these categories even after September 11, 2018.

Expedited processing for emergency situations, such as humanitarian reasons, severe financial loss to a company or person, or other compelling reasons may be considered on a discretionary basis by USCIS.

Employers will need to be aware that work authorization for F-1 students who are qualified for employment under the cap-gap period will automatically expire on October 1 if their H-1B cap case petition remains pending after October 1 and their OPT employment authorization document has expired. International travel while a change of status H-1B petition is pending is not recommended, as the change of status request will be deemed abandoned and the H-1B beneficiary may be required to remain outside the U.S. until the H-1B petition is ultimately approved. Likewise, in a change of employer situation when the H-1B beneficiary can start employment upon filing and before the petition is adjudicated, departing the U.S. before the change of employer H-1B petition is approved will leave the beneficiary unable to return until the petition is approved unless the beneficiary is in possession of a valid H-1B visa stamp.

If you are considering filing an amendment, change of employer, or change of status petition, please contact Elizabeth Chatham, Brad Sandler, Renee Mueller Steinle, Olga Andreyeva or the Stinson Leonard Street contact with whom you regularly work.

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