Working Together

The United States Citizenship & Immigration Services announced on Friday, March 3, 2017, that effective April 3, 2017, it will suspend premium processing of H-1B petitions, for an expected six months. Its stated reason for doing so is to focus on addressing a backlog of long-pending non-premium petitions. Because April 3 is the first day that petitions can be submitted for the fiscal year 2018 H-1B cap (the usual April 1 start dates falls on a Saturday), this decision means that premium processing will not be available for any petitions submitted during the April, 2017 “lottery” season.   It will also be suspended for all cap-exempt petitions.

This change will not affect “cap-gap” eligibility for beneficiaries whose OPT work authorizations from their F-1 student visas are expected to expire during the adjudication period, as the availability of an extension turns on whether the petition is filed before the expiration of the OPT authorization, not whether it is adjudicated before the expiration of the authorization.  In fact, a few employees who are beneficiaries of petitions that are not ultimately selected or approved may end up with longer extensions of their work authorizations than they would have had with premium processing, if denials that would end their extensions are issued later than the denials  otherwise would have been.  (Although if USCIS follows its normal schedule for issuing receipts for petitions selected in the lottery and returning unselected ones, it will be likely be obvious by the same time of year as in a premium-processing environment which extensions have been ended or foreclosed by non-selection of the petitions.)

Those likely to be more affected by this change are sponsors and beneficiaries of cap-exempt change-of-employer petitions, who may face many-month waits to begin their new job arrangements.  While the law allows an employee to begin work with the new employer in such a circumstance upon submission of a good-faith, complete petition, without waiting for a decision on the petition, an employee will often understandably be reluctant to do so because of the risk of being without a job altogether if she leaves her original H-1B employment and then later learns that the change-of-employer petition has been denied and she cannot continue to work for the new employer, either.  Employers and employees wanting to avoid that risk will now have to wait months, not weeks, to fill vacant positions and pursue new career opportunities

Similarly, the unavailability of premium processing will significantly increase turn-around time for new hires for cap-exempt positions such as academic posts, medical jobs in university hospitals, and the like.

The announcement does not provide any guidance on likely processing times for new petitions filed without premium processing.  The most recent USCIS processing time updates available, however, which were posted at the end of December, 2016, indicate that at that time the service was processing H-1B new visa / change of status petitions in approximately eight and a half months in the Vermont Service Center, and six months in the California Service Center.  Neither timeframe, if it held for the upcoming lottery season, would allow for petitions filed on April 3, 2017 to be adjudicated before the October 1 start date for FY2018 cap-subject petitions.

We will update this blog with additional details when we can.