The United States Citizenship & Immigration Services (USCIS) announced on March 3rd that it will suspend premium processing of all H-1B visa petitions beginning April 3, 2017. This date deliberately coincides with the H-1B cap opening, but the suspension affects all H-1B petitions, including cap-subject (Master's and Bachelor's cap) and cap-exempt H-1B petitions, as well as H-1B extensions, amendments, and change of employer petitions. USCIS advises that the suspension could last up to six months, or early October 2017. USCIS's stated reason for the suspension of premium processing is to focus on shortening the processing time of regularly-filed H-1B petitions, which has recently lengthened to six months or longer.
Premium Processing is an option offered by USCIS that provides expedited 15-day processing of visa petitions for an additional fee. It is frequently used by employers to obtain faster approvals of petitions. During the annual cap filing, many employers use premium processing in order to be notified of selection in the lottery and approval of the petition sooner.
Impact of the Suspension
The suspension has many possible implications for employers and beneficiaries of cap-subject H-1B petitions, as well as those already in H-1B status, given that the processing time for regularly-filed (non-premium) H-1B petitions is currently six months or greater. Because the processing time of H-1B petitions may not be reduced quickly, the suspension may lead to:
- Uncertainty of Results of H-1B Cap Petitions: Without premium processing, employers may not learn until June or later if their April 1 petitions were selected in the H-1B lottery. And even once an employer learns – by receiving a hard-copy receipt from USCIS – that the petition was selected, the employer may still have to wait many months to know if the petition was approved. This uncertainty makes it difficult for employers and beneficiaries to plan for the future. In addition, it is possible that the H-1B petition will be approved later than October 1, leaving the employer without the services of the employee for a greater time and rendering some employees out of status.
- International Travel: Those already in H-1B status whose status expires in the next six months may also face travel restrictions or delays on returning to the U.S. The H-1B petition must be approved before one can secure a new visa stamp at a U.S. Consular Post, and there will be no option to upgrade the petition to premium processing as travel nears. For those with global roles requiring frequent international travel or critical events/conferences to attend abroad, this may be particularly devastating.
- Driver's License: H-1B workers (and their dependent family members) may not be able to renew their driver's license while an extension is pending. The timely filing of an extension allows an H-1B professional to legally remain in the U.S. and continue working, but many states will not renew a driver's license based solely on a receipt notice and require the actual approval of the H-1B extension before renewing a driver's license.
- Gap in Spousal Work Authorization: Certain spouses of H-1B visa holders who are in the green card process can obtain work authorization, known as an H-4 Employment Authorization Document (EAD). Unlike the H-1B context, where the filing of an extension alone authorizes continued work authorization for a period of 240 days, an H-4 EAD holder is only authorized to work while the EAD itself is valid. If there are long delays in adjudicating H-1B and H-4 extensions, which must be approved first, this will postpone the adjudication of the H-4 EAD and may lead to gaps in employment authorization for a dependent spouse.
- Reassurance When Changing Employers Through an H-1B Change of Employer Petition: Some employers and H-1B professionals prefer to have an H-1B Change of Employer petition approved before giving notice or changing companies, particularly where the petition is based on AC21 or a recapture of time spent abroad. Such an approach will likely not be feasible while the suspension is in effect.
- Loss of Ability to Upgrade or Convert to Premium Processing: Employers may have a cost-conscious policy of filing certain petitions under regular processing with a plan to upgrade the petition to premium processing if it remains pending as certain deadlines approach. Employers may need to revisit this "wait and see" approach for cases that must be adjudicated in the next 6 months.
Employers should assess their employee population with their Immigration counsel at Pryor Cashman to swiftly identify employees who may be impacted by the suspension. Employers may wish to file certain cases, notably H-1B extensions where an individual has international travel, a spouse working on an H-4 EAD, or an expiring driver's license, before the suspension takes effect. Similarly, employers should review H-1B petitions already filed and pending with USCIS to identify those that should be immediately converted to premium processing while that benefit is still available. In addition, employers may wish to initiate discussion with employees and managers who may experience a gap in work authorization (e.g. H-4 EAD) or have critical international travel, in order to make alternative plans and minimize the disruption to the business. Last, but not least, employers will need to manage expectations regarding when they will learn the results of the H-1B cap filing and adjust plans accordingly.
Pryor Cashman will continue to monitor the suspension closely and provide further updates should the suspension be lifted or extended. Please contact us with any questions on the suspension of premium processing and its impact on your business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.