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Adrian Pandev is an experienced immigration attorney and self-proclaimed immigration law nerd. Adrian is fascinated with all immigration, citizenship, and migration related news around the world. "The Empirical Immigration Blog is a way for me to share my knowledge and thoughts on new immigration developments with the world." - Adrian Pandev.
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How Does USCIS's Suspension of Premium Processing for Cap-Subject H-1B Petitions Impact Your Case?
By Adrian Pandev
Today, USCIS announced that starting April 2, 2019, it will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including those filed under the master’s degree cap.
H-1B Visa & Premium Processing Background
The H-1B visa is a non-immigrant visa that many US companies use to employ foreign nationals in specialty occupations that require theoretical or technical expertise. It is the most common visa used by US employers to hire foreign engineers, scientists, consultants, or analysts, among other professionals.
Each year the US makes 65,000 H-1B visas available to foreign nationals. An additional, 20,000 H-1B visas are available for individuals holding a U.S. master’s degree or higher. USCIS will begin accepting cap-subject H-1B petitions for FY 2019 on April 2, 2018. If USCIS receives over 65,000 petitions during the first five business days, it uses a computer-generated random selection process, known as “the lottery,” to select 65,000 H-1B petitions to process. H-1B petitions that are not selected in the lottery, are rejected by USCIS.
If a petitioning employer files a request for premium processing, USCS adjudicates the H-1B petition in 15 days. This 15 day adjudication period provides some much needed certainty for anxious H-1B employers and foreign national employees. Petitions filed under regular processing can remain pending for many months, sometimes even past the October 1 employment start date. It is also not uncommon for USCIS to issue receipt notices as late as June.
Reason for Suspension of Premium Processing
USCIS has stated that this temporary suspension will help the agency reduce overall H-1B processing times. Specifically, USCIS states that this temporary suspension will allow it to process long-pending petitions, which the agency has been unable to process due to a high volume of recently filed petitions and a significant surge in premium processing requests over the past years. Moreover, USCIS believes that this temporary suspension will allow it to prioritize adjudication of H-1B extension of status cases that are nearing the end of the critical 240 day period (An individual can continue to work for her current employer for up to 240 days after the current H-1B visa expiration of she is awaiting a USCIS decision).
Potential Problems for H-1B Employees
USCIS’s suspension of the premium processing service could severely complicate the lives of H-1B employees. Besides the uncertainty involved with regular processing, the inability to upgrade to premium processing might make it impossible for H-1B employees to travel outside the US. It is generally not recommended that an H-1B worker, who needs to apply for an H-1B visa at a US consulate, travel outside the US while her petition is pending with USCIS. Additionally, some US states require foreign nationals to show an H-1B approval notice in order to extend a driver’s license. This could cause significant challenges to foreign nationals who drive to work every day.
Requesting Expedited Processing During Suspension Period
USCIS has stated that it will continue to accept premium processing requests during the suspension period if the H-1B petition meets certain criteria listed on its Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and USCIS encourages petitioners to submit documentary evidence to support their expedite request. USCIS has indicated that it will review all expedite requests on a case-by-case basis and will grant requests at the discretion of USCIS office leadership.
Thoughts & Observations
Hopefully USCIS will, in fact, adjudicate long-pending H-1B petitions as it has indicated. The H-1B visa program has come under attack in recent years because many Congressman and immigration policy leaders in the Trump administration erroneously view it to be taking away jobs from US workers. Hopefully, this latest change in H-1B processing is not a start to further changes to the H-1B program.
US employers, particularly in the technology and science fields which employ many foreign workers, need the H-1B program to attract the best and brightest talent from around the world. By suspending premium processing, USCIS has made it more difficult for US employers to attract the most talented foreign nationals, who often have many top employment choices in other immigrant friendly countries. This latest change to the H-1B program will particularly affect US technology companies who routinely battle their international competitors for the best global talent.
The limited number of 65,000 regular cap and 20,000 master’s cap H-1B visas available each year has already made it difficult for US employers to hire H-1B workers. Instead of helping US employers by expanding the amount of H-1B visas available each year, USCIS has made the H-1B process more uncertain and complicated.
There are already many issues with the H-1B program. There was no need to make an already imperfect system even more imperfect.
If you are wondering how the new H-1B premium processing suspension impacts your H-1B case, contact an experienced H-1B attorney today. Call us at (646) 249-0139, email firstname.lastname@example.org, or fill out our contact form to speak with a South Carolina immigration lawyer.
Our Charleston H-1B immigration lawyers are here to help with all your immigration law needs.
CALL (646) 249-0139 FOR A FREE CONSULTATION WITH AN EXPERIENCED H-1B IMMIGRATION ATTORNEY
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