USCIS Temporarily Suspends Premium Processing of H-1B CAP Petitions ONLY

USCIS has announced that effective April 2, 2018, they are temporarily suspending premium processing for H-1B cap petitions (only) until September 10, 2018.   Please note that this suspension applies only to H-1B cap petitions filed under the annual H-1B cap season.      All other H-1B petitions – such as extensions, transfers, amendments – continue to be eligible for premium processing service.

Premium Processing Unavailable for H-1B Cap Filings Only

Starting April 2, 2018 and until September 10, 2018, H-1B cap petitioners will not be able to file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker.    During this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition.

Premium Processing Remains Available for All Non-Cap H-1B Petitions

We would like to highlight, again, that USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.   These are generally H-1B transfers, extensions, and amendments.

Other types of petitions filed on Form I-129 (such as TN, O-1, L-1, among others) are not affected and continue to have the premium processing option.

Reasons for Temporarily Suspending H-1B Premium Processing

The rationale behind this temporary suspension of the premium processing option for all H-1B cap petitions seems to be the anticipated heavy demand and high number of H-1B “cap” filing starting April 2, 2018 together with the fact that regular H-1B case processing times have been steadily going up with some H-1B petitions taking more than ten months to review and process.

Alternatives for Faster Processing

The government has retained the option to have a regular processing H-1B case be granted “expedited”  review based on a set of criteria.     According to USCIS,  petitioners may submit a request to expedite an H-1B petition if they meet any of the expedite criteria.   USCIS will expect the petitioner to demonstrate that they meet at least one of the criteria and such request should be documented and supported by evidence.   USCIS warns that the decision to expedite a case is discretionary and made on a case-by-case basis.

H-1B Cap Strategies

Without premium processing option, all H-1B “cap”  cases will take longer to process and for the lottery results to be released.   Previously,  after the H-1B cap lottery is conducted early in April,  premium processing cases are issued receipt notices first (via email, normally) and towards late April.    This meant that premium processing was the way to know if a case was picked by the lottery as early as possible and towards late April or early May.    This year, with no premium processing, H-1B cap applicants may need to wait until sometime in May or even June to find out if their case has been picked for review under the H-1B lottery.

H-1B cap applicants who are in the U.S. pursuant to F-1 OPT status should continue to be able to take advantage of the OPT cap-gap rule while the application is pending, including waiting for the lottery results.

Conclusion

This announcement suggests that USCIS is bracing for a very high rate of H-1B petitions under the cap on April 2, 2018.   While this suspension will no doubt affect a number of H-1B cap applicants, there are ways to plan for this suspension and pursue alternatives and backup options.

We urge H-1B employers who are planning to file H-1B cap petitions to plan carefully especially in cases where the H-1B cap beneficiaries are in an F-1 status situation with expiring work authorization during the summer months.

Please do not hesitate to contact us if we can be of any help in preparing for this H-1B cap premium processing disruption of service.    We are also assisting many H-1B cap applicants and we are happy to offer information and a quote for our services   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.