USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

by Joseph McKeown

US Citizenship & Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017, the beginning of the filing period for H-1B “cap” cases. During the premium processing suspension, which may last up to six months, 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, for either H-1B “cap” or “cap exempt” petitions. USCIS will notify the public before resuming premium processing for H-1B petitions. All Form I-129 H-1B petitions properly filed before April 3, 2017, will continue to be premium processed within the required fifteen-day calendar frame. Note that the temporary suspension of premium processing for H-1B cases does not apply to other eligible nonimmigrant classifications.

Who Is Affected?

The temporary suspension applies to all “cap” and “cap exempt” H-1B petitions filed on or after April 3, 2017. Since fiscal year 2018 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). USCIS will reject any Form I-907 filed with an H-1B petition as long as the suspension is in place. Moreover, if petitioners during the premium processing H-1B suspension period submit one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.

This news will certainly be upsetting to some H-1B petitioners since many file H-1B cap cases via premium processing to ensure a faster response time if the case is selected in the lottery for adjudication. Cap cases filed via regular processing have been known to take six to twelve months or longer to process, and those seeking a response prior to October 1 in the past have opted for premium processing. Additionally, employers in the past have been notified by email if the case was picked in the lottery for premium processing cases. Last cap season, we noted that employers and foreign nationals with premium processing cases knew whether their case was selected for the H-1B cap faster than those filing under regular processing.  While of course premium processing has no affect on whether the case is selected in the lottery, many petitioners appreciated the option of discovering expeditiously if the case had indeed been chosen for adjudication.  

Moreover, for foreign nationals filing cap exempt cases who need to travel internationally, or who need to renew a driver’s license, premium processing can be a valuable resource.  Additionally, in the busy summer months when international travel is at its peak, many foreign nationals wish to obtain an approval notice quickly so they can apply for a visa stamp at a US Consulate/Embassy abroad. The suspension of premium processing for all H-1B cases could put some US employers and foreign nationals in a bind.

Requesting Expedited Processing

During the period when premium processing is suspended, petitioners may nevertheless submit a request to expedite an H-1B petition if they meet the expedite criteria. While filing a case via premium processing guarantees a response in fifteen calendar days as long as the requisite fee of $1225 is paid and I-907 correctly submitted, expedite requests are reviewed on a case-by-case basis and granted at the sole discretion of the office leadership. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation—these particular expedite requests must come from an official US government entity and state that delay will be detrimental to the government;
  • USCIS error; or
  • Compelling interest of USCIS.

Why Is USCIS Temporarily Suspending Premium Processing for H-1B Petitions?

USCIS claims that the temporary suspension of premium processing for H-1B cases will help to reduce overall H-1B processing times. By temporarily suspending premium processing, they hope to devote resources to:    

  • Process long-pending petitions, which USCIS claims they have been unable to process due to the “high volume” of newly-filed petitions and “significant surge” in premium processing requests over the last several years; and
  • Adjudicate H-1B extension of status cases nearing the 240-day mark. 

We will provide updates as soon as USCIS resumes premium processing for H-1B petitions.

UPDATE JULY 26, 2017: US Citizenship & Immigration Services (USCIS) announced this week they will resume premium processing for certain cap-exempt H-1B petitions. Effective July 24, 2017, premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; or
  • A nonprofit research or governmental research organization.

Moreover, premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization, or entity.   

Until announced otherwise, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will therefore reject any Form I-907 filed for those petitions, and if petitioners submit one check combining the fees for Form I-907 and Form I-129, USCIS will reject both forms. USCIS previously announced that premium processing resumed on June 26 for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers. USCIS plans to resume premium processing of other H-1B petitions as workloads permit, and will make an announcement once they do so.