USCIS Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

On March 21, 2018, USCIS announced that it will again temporarily suspend premium processing for all fiscal year (FY) 2019 cap-subject H-1B petitions.  For an additional filing fee, premium processing allows employers to request faster processing of certain employment-based petitions and applications.  USCIS expects this suspension will last from April 2, 2018 through September 10, 2018.  During the suspension, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap and for petitions that meet USCIS’s “expedite criteria.”

Petitioners can make expedite requests to USCIS for the following reasons:

  • 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 U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS. 

Please note USCIS has discretion to accept or reject an expedite request. 

USCIS cites reducing the overall H-1B processing times, including processing long-pending petitions and prioritizing the adjudication of H-1B extension-of-status cases nearing the 240-day mark, for its reasoning behind the suspension.  Only employers that are filing H-1B petitions in the lottery this year will be affected by this suspension.

Below we have listed some frequently asked questions:

Q: How will this impact employers?

A:  In the past, petitions filed and selected in the lottery using premium processing received a Receipt Notice sooner than those filed through regular processing.  Without premium processing, we can expect employers to start receiving receipt notices for those cases selected in the lottery at the end of April or May.  The exact timing will depend on the number of cases USICS receives in the lottery.  In addition, start dates of October 1, 2018 may be delayed if a decision is not received by that date.  Although premium processing should become available by September 10, 2018, allowing for a decision in 15 days after converting the petition to premium, USCIS could issue a Request for Additional Evidence (RFE), and the employer will have to respond to the request and then wait an additional 15 days for a decision.  As such, employers should be prepared that even if their employee is selected in the lottery, they may not actually be able to commence working on October 1, 2018.

Q: How does this impact individuals working under “cap gap”?

A:   Students who are currently on an F-1 visa, with an OPT Employment Authorization Card that expires prior to October 1, 2018, and whose employers have filed an H-1B petition prior to the OPT expiring, can continue working after their OPT expires under “cap gap.”  Cap gap offers these students work authorization for the period of time between when their OPT ends and their H-1B visa goes into effect (i.e., October 1, 2018).  An employee may continue working under cap gap until one of the following occurs:  (1) the petition is not selected in the H-1B lottery or (2) if selected, they may continue working until September 30, 2018.  The cap gap period automatically ends on October 1, 2018, at the start of the new fiscal year, even if a decision has not been made on the H-1B.  As such, if the employee’s H-1B visa has not been approved (perhaps due to the delay in processing or an RFE), the employee’s work authorization is terminated, and they must stop working until a decision is made on the H-1B petition. 

Q:  When and how can employers use premium processing for H-1B cap petitions?

A:  Assuming premium processing is reinstated on or before September 10, 2018, employers can convert pending H-1B petitions to premium processing with the receipt notice and by paying a fee of $1,225.  Upon receipt of the request to upgrade the petition to premium processing, USCIS will adjudicate the petition in 15 calendar days.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.