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03.07.2017 Trump Administration Suspends Premium or Expedited Processing of All H-1B Petitions! By: Eliot Norman & Hadeel Abouhasira

On April 3, 2017, the Trump Administration Will Suspend for up to 6 Months All Expedited or Premium Processing of H-1B Petitions. 

This is the latest in a series of changes or attempted changes to immigration policies and procedures during President Trump’s first 100 days. This change impacts adversely the business community, particularly high-tech companies, whether U.S. or foreign-owned, that recruit global talent using the H-1B program. Here are the key FAQs:

What is an H-1B?

The H-1B is a visa for specialty occupations requiring at least a four year B.S. or B.A. degree or its equivalent, such as software engineers, scientists, architects, market researchers, financial analysts, economists, software developers, and the like. The H-1B is valid for three (3) years with the right to a three (3) year extension. Employees processing Green Cards may be eligible to extend the H-1B beyond the six (6) year maximum.

How many H-1Bs are available?

New H-1Bs for foreign nationals seeking work in most private sector jobs are issued annually pursuant to a lottery, which in recent years is exhausted the first week of April. New H-1Bs for CAP positions in private industry are effective October 1 of each year. Under the H-1B CAP there are only 85,000 available, including 20,000 reserved for positions requiring a Master’s Degree (M.S.) or higher. The chances of winning the H-1B Lottery are about 33%, as usually about 230,000 to 250,000 petitions are filed annually for the 85,000 slots. Market demand far exceeds the supply of new H-1B CAP visas.

The Lottery will open for FY2018 H-1B Cap cases on April 3. Thus, the date of the suspension is timed to eliminate expedited processing for all of the 250,000 petitions now being prepared for filing on April 3.

How many persons are now working on H-1Bs?

A rough estimate is that there are more than 600,000 persons working on H-1Bs in the U.S. in the private sector, with an additional 85,000 added each year through the Lottery.

Why is Expedited or Premium Processing Important?

There is a very active and important labor market for H-1Bs who seek advancement by switching employers. When an H-1B is recruited by Company B from Company A, she can start work as soon as the “transfer I-129 petition” by Company B is filed with the USCIS. However, nearly all employees are reluctant to switch employers until they know that their new H-1B Petition has been approved. To avoid waiting 4-8 months or more for a decision, employers now pay a $1225 fee for Premium Processing, which can result in approvals in 15 days of receipt of the petition by USCIS. Use of Premium Processing allows Company B to recruit and start the employee within 30 days or less. Elimination of Expedited Processing can close the door on this form of recruitment unless the employee is willing to take the risk of switching employers without having an approval notice in hand. So far, few do.  

There will probably also be an adverse impact on new H-1B Cap cases. Many recent foreign college graduates work in OPT F-1 status or on J-1 practical training or internship visas, and they count on receiving an H-1B approval before October 1 of each year to avoid disrupting their employment. Human Resource planning will now be made more difficult without the certainty of Premium Processing Approvals in 15 days or less. Stay tuned as companies and counsel try to adapt to the new environment of delays and their unknown consequences.

Are there any exceptions to the suspension of Premium Processing?

Yes, on a case-by-case basis USCIS will consider requests for expedited processing, based upon personal or financial hardship to a company or employee. It remains to be seen how these criteria will be applied and under what circumstances and how many cases annually will be granted an exception.

Is there any light at the end of the tunnel?

DHS says it is suspending Premium Processing so that it can devote resources to the backlog now taking up to one year to decide H-1Bs. That backlog is putting in jeopardy existing H-1Bs working while their extensions are pending, as they can do so only for a maximum of 240 days without falling “out of status” and further jeopardizing their ability to stay in the US and eventually obtain Green Cards. If the USCIS plan works, it is hoped that we can return to the use of expedited processing by October, 2017. The great unknown is the “hiring freeze” that President Trump imposed on all government agencies by memorandum on January 23, 2017. The “freeze,” last imposed by President Reagan in 1981, may drastically limit the ability of USCIS to devote enough resources to catch up with its backlog. Further, loss of Premium Processing may just be the first of several or many restrictions that may be announced soon and that may restrict the numbers and use of H-1B and other business visas.  

TEXT OF THE ANNOUNCEMENT ON FRIDAY NIGHT, MARCH 3, 2017 by USCIS:

“Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.

We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.”