WHAT’S HAPPENING
Today, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019. The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service.
While this marks a departure from USCIS’s prior statements indicating that premium processing would remain available for this year’s cap cases, USCIS has indicated that it has temporarily suspended premium processing service in order to reduce overall H-1B processing times, including those of long-pending cases and unadjudicated H-1B extension requests that are approaching 240 days since filing (after which the beneficiary would lose their automatic extension of employment authorization until the new petition is approved). The agency confirmed that it will notify the public before resuming premium processing or making any other premium processing updates.
WHO THIS IMPACTS
Individuals who planned to submit FY2019 H-1B cap-subject petitions using premium processing service will no longer be able to do so. While USCIS has indicated that premium processing service will remain available for all other case types, it is possible the agency could once again reverse its position and thus we are monitoring the situation closely in the event the premium processing suspension is expanded beyond cap-subject petitions.
It is also possible that the suspension could result in cases remaining unadjudicated beyond October 1, which would have a significant impact on individuals relying on a cap-gap extension of employment authorization, as cap-gap extension of F-1 Optional Practical Training (OPT) work authorization are only valid until September 30, 2018. Therefore, if the H-1B petition which serves as the basis for the cap-gap extension remains unadjudicated after that date, these individuals will fall out of work authorized status (but will be permitted to remain in the country while the petition pends) and their work authorization will only resume if and when the H-1B petition is ultimately approved.
The expectation is that USCIS will make an effort to prioritize adjudication of cap cases to avoid this situation but this is not a guarantee. In addition, premium processing service may resume again on September 10th, thus allowing those who still have cap-subject petitions pending, including those filed on behalf of F-1 students relying on cap-gap work authorization, to request an upgrade to premium processing service at that time with the hope of having the case adjudicated prior to October 1, 2018 and, thus, avoiding any gaps in work authorization. Note, however, that Requests for Evidence (RFEs) could potentially impact overall adjudication times even if premium processing service resumes.
WHAT YOU NEED TO KNOW
In terms of overall impact, because it will not be possible to file any H-1B cap petitions with a request for premium processing service, employers can expect delays in notification of acceptance of H-1B cap cases in the lottery as well as final adjudication of cases that are accepted in the H-1B lottery. Based on recent policy guidance as well as shifting H-1B adjudications trends following the Buy American, Hire American executive order, we are also expecting more RFEs for cap-subject petitions, which may also prolong processing times and subject cases to greater unpredictability in light of the unavailability of premium processing. As noted above, employees relying on cap-gap work authorization will want to pay particular attention to adjudication times for cases and should be prepared to submit requests to upgrade their cases to make use of premium processing service, assuming it becomes available again in September as planned.
D&S is continuing to monitor the situation and will provide updates as they become available.