U.S. Citizenship and Immigration Services (USCIS) recently announced that it will suspend expedited processing of visas for skilled workers in specialty occupations.  The suspension will start on April 3, 2017, and last up to six months.  Premium processing allows for an H1-B visa petition to be adjudicated within 15 days of filing, for a fee of $1,225.  Many employers take advantage of premium processing so that both the employer and foreign worker can plan with certainty for the new employee’s joining.  Without premium processing, the adjudication of an H1-B visa petition can take many months (on rare occasions, even up to a year), depending on the processing location.  

A limited number of H1-B visas are granted each fiscal year under the cap program, which operates under a lottery system to grant the quota of visas.  This year, USCIS will begin to accept such petitions on April 3, 2017.  This means that no H1-B petition subject to the cap will be allowed premium processing this year.  Because most H1-B workers under this program are set to begin work in October, an applicant whose petition is selected in the lottery may have little to no advance notice during which to prepare for the employee’s joining.  If the application is unsuccessful, the employer will have put its search for an alternative candidate on hold for several months.

The suspension of premium processing likewise applies to all other H1-B petitions filed on or after April 3, 2017, including those not subject to the cap program and filings for visa extensions or change of status.  With respect to employers not subject to the cap program, such as universities, hiring needed foreign nationals may become impractical due to the months of uncertainty prior to approval.  Daily practical difficulties will arise for individuals filing for H-1B extensions or change of status. Anticipated problems include the potential inability to obtain a driver’s license renewal and/or to travel abroad while their extension of status or change of employer petitions are pending.  The inability to get quick decisions may discourage H1-B workers from transferring to another company and discourage employers from seeking out H1-B talent as lateral hires.

While this is not the first time USCIS has suspended premium processing, this suspension differs from previous suspensions because the timeline is so uncertain.  Prior suspensions generally ended on a certain date – usually ending in approximately one-month. Having a verified end-date to suspension of premium processing in previous years allowed employers and workers to adequate plan.  Suspension of premium processing is allegedly intended to allow USCIS time to process backlogged or long-pending petitions.

Workers seeking an extension or intending to change to or extend their existing H-1B visa status should apply as soon as possible to potentially take advantage of premium processing prior to its suspension.  If premium processing is filed prior to the suspension date but not adjudicated before April 3, 2017, it is not entirely clear whether USCIS will return the premium processing fee on any unadjudicated cases or will proceed to adjudicate those that were timely filed.

Despite the suspension, USCIS will allow for expedited processing for H1-B petitions meeting certain criteria, such as severe financial loss to a company, emergencies, humanitarian reasons, or nonprofit organizations whose request is in furtherance of the cultural and social interests of the United States.  Grants of these requests are discretionary, and any requests should be supported by documentary evidence.

By Camiel Becker and Clare Bienvenu