Client Success Story: How Premium Processing of an H-1B Petition Helped Us Reverse USCIS Error and Save Our Client Time and Money

One of the main areas of expertise of our firm is handling H-1B petitions for a number of organizations around the United States.   Our readers are aware that the H-1B petition allows the election of a premium processing service which, for an additional government filing fee of $1,410 (was $1,225), guarantees that the government will provide a response on the petition within 15 calendar days.     Often we are asked by our clients to advise whether premium processing must be chosen or the regular process (which can vary between 2-5  months) is sufficient.

In many cases this determination is easy – premium processing must be used when there is a requirement for fast employment start, especially in change of status cases.   In other cases, however, the decision to use premium processing is not so easy.    We would like to share one of our recent client success stories to highlight some of the additional benefits of using premium processing.

The Client Situation

Our office was contacted by an individual and their employer after they had filed the H-1B petition internally.   The employer sought to petition for H-1B transfer and to extend the beneficiary’s current H-1B status.    Due to a number of reasons, the employer had filed the H-1B transfer petition a few days after the optimal filing time and, as a result, USCIS had issued a request for evidence seeking evidence that the beneficiary had maintained valid status as of the time of filing of the H-1B petition.     Our office was engaged to respond to the RFE and complete the case in the best possible way.

Upgrading to Premium Processing Together with the RFE Response

We worked with the client to prepare the best possible RFE response and we worked to draft a number of legal arguments providing a justification of the delay and asking for USCIS discretion in excusing the late H-1B petition filing by the client.   At the same time, we upgraded the H-1B petition from regular to premium processing.    The rationale for this premium processing upgrade was partially to force the decision faster so that the client can seek alternatives in case the USCIS response was negative.

At the same time, by upgrading to premium processing, as attorneys, we gained a few additional and often overlooked benefits of the premium processing service.    First, we are given a direct access to the USCIS service center, including a direct email and phone contact with immigration officers at the service center.   This kind of access is essential when working with USCIS to address any issues or concerns relating to a case promptly and efficiently.

By way of comparison, USCIS provides a customer service phone line to all regular processing cases but handling case issues, especially complex ones,  through the regular customer service avenue is often very slow and sometimes, especially for more complex situations, even impossible.

Initial USCIS Decision:   Both Petition and Extension of Status Requests Denied

In response to our premium processing upgrade and RFE response, USCIS provided a prompt decision but not the decision our client hoped for.   USCIS determined that because the beneficiary had not maintained valid status at the time the H-1B petition has been filed, they are denying both the H-1B classification petition and the extension of status request.

At that time, our attorneys immediately spotted a USCIS error.   In cases where the beneficiary is not proven to be in valid status at the time of filing of an H-1B petition, USCIS has the option of denying the status component of the H-1B petition.  However, if there are no other outstanding issues regarding the H-1B petition, USCIS should approve the H-1B classification component of the petition.

As a result, our office realized that USCIS should have approved the H-1B petition, with consular notification option, even though the status component of the petition was denied.   We sought to correct this situation for our client.

Case Problem and Error Resolution for Premium Processing Cases

Normally, when USCIS denies an application, the normal route is to file for an I-290B motion to reopen/reconsider or even appeal at the Administrative Appeals Office.   This application must normally be filed within 30 days of the denial decision date, often with a fee, and often has a processing timeline of 4-6 or more months.    This kind of case denial resolution option is often inadequate, especially for H-1B petitions, because of the significant period of uncertainty.    Many employers decide to refile their H-1B petition with a new set of fees even when they feel that the denial is reversible on appeal.

Understanding the challenges of a new refiled petition in terms of time and cost for our client, we sought to convince the service center that they have made a wrong decision.    Immediately upon receipt of the denial notice, our office reached out to the service center’s premium processing unit responsible for the case and we explained in detail the legal reasons as to why their decision to deny the H-1B classification portion of the petition was wrong.     We explained that under relevant guidance a finding that the beneficiary had not maintained valid status at the time of filing should not cause the classification portion of the H-1B petition to be denied.   Instead, in this kind of cases, the H-1B petition should still be approved, albeit with consular processing.

Several days later our office received notification from the service center that a supervisor had reviewed our arguments in the case and had issues a corrected decision — to approve the H-1B petition with consular processing.   As a result, we were able to achieve complete and favorable case resolution for the full benefit of our client within a few days and without any additional cost to our client (this kind of service is normally included in our H-1B petition flat fee arrangement).   We were able to save time and money to our client by not having to use the I-290B motion/appeal case resolution avenue.

Is Premium Processing Worth It In All Situations?

The moral of this story is not to imply that premium processing should be used in all situations – in fact, there are cases where premium processing may impact an H-1B filing strategy negatively.    The moral of the story is that premium processing service should be considered not only when a fast decision is required but also where the case may have complexities or issues.

Certainly we suggest all H-1B petitioners to discuss the pros and cons of premium processing with their attorneys before filing to understand and confirm that a premium vs. regular processing filing option is the best for that particular case.

Conclusion

We hope that this client success story is helpful to our clients and readers to understand the alternative ways to resolve a case where premium processing has been used.    Our hope is that case difficulties would not happen in the first place, but if or when they do, using premium processing service may allow for one extra layer of case resolution options.

Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements