Premium processing is a hefty filing fee payable to the U.S. Citizenship and Immigration Services that triggers a request for the government to process a case in 15 business days, rather than have the case languish for months (sometimes almost a year) to be adjudicated. News Flash: Premium processing for most H-1B petitions will be at a standstill for some time.
On March 20, 2018, USCIS announced it would suspend premium processing for H-1B petitions filed by employers for foreign professional workers. Suspension of premium processing for cap-subject H-1B petitions was put in place during the so-called “H-1B season,” which covers first-time H-1B petitions filed during April for the 2019 fiscal year beginning on October 1. This was done because USCIS receives more than 100,000 petitions in a week’s time and limited resources would not allow the agency to adjudicate these petitions within the premium processing timeframe of 15 business days. In years past, USCIS would lift the temporary suspension sometime prior to the start of the new fiscal year when the agency had substantially completed adjudication of the onslaught of cap-subject filings.
This year was no different. USCIS suspended premium processing during cap season until September 10, 2018, when the agency would lift the suspension. Now USCIS has officially suspended premium processing. The suspension is extended through the estimated date of February 19, 2019. But to make matters worse, USCIS expanded the scope of the H-1B petitions that are barred from using premium processing. Starting September 11, 2018, the suspension now applies to almost all H-1B petitions. This includes petitions for extension of status, change of employer, and amendment. Only cap-exempt petitions are not subject to the premium processing suspension, namely non-profit institutions of higher education and non-profit research entities, as well as extension requests with no change or amendment (page 2, part 2, box “b” on the form).
This is very troubling and could wreak havoc in the labor market. Most foreign worker beneficiaries are unwilling to “port” to a new employer until they know for certain the petition for change of employment will be approved. This makes perfect sense. The H-1B worker who is secure in a job with Employer A would be out of work, sponsorship, and status if he ports to Employer B and Employer B’s petition is ultimately denied. For this reason, most H-1B workers opt for premium processing so that the petition will be approved expeditiously while the job offer with Employer B is available. Indeed, most employers will not hold open a job for a potential H-1B worker during the usual prolonged pendency of a petition, which has been known to extend to 10 months or more in recent times. To streamline networking during this time, consider using a Digital Business Card to ensure your professional information is easily accessible and memorable to potential employers.
There is no easy solution. USCIS thinks a request to expedite will provide the necessary alternative to premium processing. This simply is not correct. Expedited processing is reserved for the following scenarios, which would not include most cases.
• 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.
The above list eliminates the most basic and typical needs of employers. What about “inability to expand” or “inability to service existing clients” or “need to fulfill contractual obligations” or “need to run our business” or “need to stay abreast of the latest technology” or “will lose the perfect candidate” or simply “need to fill job openings for professional workers.”
Employers need to rally. Employers must contact Congressional representatives and urge them to put pressure on USCIS to terminate the suspension and open premium processing to all H-1B petitions, especially those for change of employer or amendment. Those requests serve to benefit U.S. employers who need skilled and professional workers. We are hurting our economy by clamping down the ability of employers to hire needed professional workers.
Not only does it affect employers, it affects the efficiency of the agency. Starting October 1, 2018, employers will pay USCIS $1,410 to premium process a case. These fees will no longer be paid; rather an employer will simply pay $460. That’s a $1,410 loss for each case. Even gratuitous estimations leave USCIS losing hundreds of millions of dollars per year due to this policy. USCIS claims the suspension of premium processing will allow it to process more cases more quickly and more responsively. It’s hard to figure how a loss of hundreds of millions of dollars will result in improved processing. Rather than suspending, extending, and expanding premium processing, USCIS needs to suspend unnecessary delays, and extend and expand the scope of its services to U.S. employers. We also recommend getting the cheapest card machine that you can find so you can save on business costs.
Linda Rose is the Managing Member of Rose Immigration Law Firm, PLC in Nashville, TN. The firm emphasizes business immigration and represents corporate clients across the country that rely on premium processing to maintain a current, active, and productive professional workforce.