USCIS Temporarily Suspends Premium Processing for Extension of Stay H-1B Petitions

by Protima Daryanani

In an unexpected decision sure to cause frustration (trust us, there's already been a few choice words said here in our office), US Citizenship & Immigration Services  (USCIS) announced today that effective May 26, 2015 (less than one week away, which makes planning for this rather difficult), USCIS will temporarily suspend premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time period, USCIS premium processing will not accept Form I-907 Request for Premium Processing Service, filed with H-1B extension of stay petitions, but USCIS says that they will continue to premium process H-1B extension of stay petitions filed with Form I-907 premium requests prior to May 26, 2015. It is unclear at this time whether the premium processing suspension will include change of employer petitions (since most of those include extensions of stay requests).

USCIS will refund the premium processing fee if petitioners filed the H-1B petitions prior to May 26, 2015, using the premium processing service, and, per their usual guarantee, USCIS did not act on the case within the fifteen-calendar-day period. Meanwhile, premium processing remains available for all other Form I-129 H-1B petitions, including H-1B cap-subject petitions, even though the beginning validity date for these cap-subject petitions cannot be earlier than October 1, 2015.

This temporary suspension is not usually an issue because once the H-1B extension petition is filed, the foreign national may remain in the US and continue working for their employer for up to 240 days past the expiration of their current status. For example, if an extension has been filed for the foreign national whose H-1B status is expiring on September 1, that individual can continue to work from now until April 28, 2016 (240 days from September 1). The problem arises if that foreign national in the example needs to travel internationally after September 1. Indeed premium processing can still be a valuable resource, especially in the busy summer months when international travel is at its peak, and foreign nationals wish to obtain an approval notice quickly so they can apply for a visa stamp at a US Consulate/Embassy abroad. Premium processing has been available to H-1B petitions since 2001, and the abrupt decision to suspend premium processing for these types of H-1B petitions is surprising and could put some US employers and foreign nationals in a bind.

USCIS claims that this temporary premium processing suspension is necessary so they can implement and adjudicate employment authorization applications for certain H-4 spouses, who can begin filing their applications on May 26, 2015. USCIS announced they were extending employment authorization to certain H-4 spouses back in February of this year, and it was hoped that USCIS would have used the intervening three months to determine its staffing needs in preparation for the volume of applications it will receive on May 26. It is unfortunate that USCIS is not more prepared and disappointing that foreign nationals who have relied on the availability of premium processing to make their summer international travel plans will now suffer the consequences of USCIS's lack of planning.

UPDATE (July 13, 2015): USCIS announced that effective July 13, 2015, they will resume accepting Form I-907, Request for Premium Processing Service, for all Form I-129 H-1B extension of stay petitions. While as we reported USCIS originally planned to resume premium processing for H-1B extension petitions later this month on July 27, after they "closely monitored" their workloads in regards to implementing and adjudicating employment authorization applications for certain H-4 dependent spouses—which, of course, was the reason for the premium processing suspension—USCIS determined (we're pleased to report) that they can resume premium processing earlier than expected on July 13.