United States: USCIS Temporarily Suspends Premium Processing Of H-1B Petitions

USCIS has announced that it will temporarily suspend Premium Processing for all H-1B petitions, beginning April 3, 2017. The suspension will apply to all H-1B petitions, including new H-1B cases filed under the FY18 H-1B cap, as well as extensions, amendments, and other cap-exempt petitions. According to USCIS, the temporary suspension is being implemented to help the agency reduce overall H-1B processing times, and it could last up to six months.

The Premium Processing program allows petitions in qualifying categories to be adjudicated within 15 calendar days for an additional filing fee. By contrast, the standard H-1B processing time usually ranges between three to six months but could take longer depending on existing backlogs and availability of resources. While Premium Processing is suspended, USCIS will reject any Form I-907 Request for Premium Processing filed with an H-1B petition. Requesting Premium Processing for an H-1B cap case while the program is suspended could lead to the whole petition being rejected, likely causing the petition to be excluded from the H-1B cap lottery. It is not possible to file an H-1B cap case in advance of the suspension. The suspension of Premium Processing for H-1B petitions has several possible impacts including work authorization for the principal, work authorization for a dependent H-4 spouse, driver’s license renewals and international travel ability, which are discussed further below.

Impact for Beneficiaries of First-Time H-1B Petitions Filed Under the FY18 Annual Cap:

Impact on International Travel: For foreign nationals who hold a different nonimmigrant status who will be filing first-time H-1B petitions starting April 3, 2017, under the annual H-1B filing cap, there are several potential issues to consider. If the foreign person must travel overseas during the pendency of an H-1B petition requesting a seamless change of status from his current nonimmigrant status to H-1B, the “change of status” will be deemed abandoned, requiring additional steps and costs for the employer to activate the H-1B status.

Impact on Work Authorization and International Travel for F-1 International Students During “Cap Gap” Period:  

For international F-1 students who timely file an H-1B FY18 cap petition and are granted “cap gap” work authorization to extend school-issued OPT work authorization until September 30, 2017, if the H-1B petition is still pending on October 1, 2017, the F-1 student must stop working until the H-1B petition is approved.

As for international travel during any “cap gap” period, F-1 students should avoid it altogether as they would be deemed to have abandoned the request for a seamless change of status from F-1 to H-1B once the petition is approved, and they would lose the “cap gap” work authorization and be stuck outside the U.S. until the H-1B petition is approved. They would have to wait overseas for the H-1B petition to be approved and then apply for an H-1B visa at a U.S. consulate overseas to return to the U.S.  

Impact and Considerations for Those who are Filing H-1B Extensions or Amendments:

H-1B Work Authorization: H-1B extensions can be filed a maximum of six months prior to the expiration of the beneficiary’s current period of stay, but lately, USCIS has not been able to adjudicate H-1B petitions within six months. Fortunately, H-1B workers are allowed to work for 240 days beyond the expiration of their last H-1B petition if an extension has been timely filed. But if the H-1B petition is not approved within that 240-day period and Premium Processing is still suspended, there would be a gap in the H-1B work status, and the worker could not work until the H-1B petition is approved.

Driver’s License Renewals: Given the extremely long processing times for non-expedited H-1B petitions, some H-1B workers may not be able to renew their driver’s licenses on time. Driver’s license renewal procedures are state-specific. While some states allow foreign workers to renew driver’s licenses based on just a government Receipt Notice confirming the proper filing of a work visa petition, other states require the foreign worker to present the work visa petition Approval Notice to renew a driver’s license. Therefore, the suspension of Premium Processing for H-1B petitions could result in a foreign worker’s inability to renew a driver’s license on time.

H-4 Spouse EAD Work Permit Renewal: For H-4 dependent spouses who work pursuant to an employment authorization document (EAD), the EAD cannot be renewed until the underlying H-1B/H-4 extension is approved. Therefore, the suspension of Premium Processing for H-1B petitions could result in a gap of the H-4 spouse’s work authorization if the current EAD expires while the H-1B/H-4 extensions are pending. In that case, the H-4 spouse would have to stop working until the EAD is approved.  

The Bottom Line: The temporary suspension of Premium Processing service for H-1B petitions raises several possible consequences for H-1B beneficiaries including the potential for gaps in existing work authorization, restrictions on international travel, delays in driver’s license renewals, and gaps in work authorization for H-4 spouses and other foreign workers. Given the April 3, 2017, effective date of the suspension, absolutely no H-1B FY18 cap-subject petition can be filed under Premium Processing. Because the possible impacts are wide and varied, you should seek advice from immigration counsel to evaluate the specific circumstances of your cases.

Employers who have pending or upcoming non-cap H-1B cases should file at the earliest point possible (generally 180 days in advance of the foreign worker’s current nonimmigrant status expiration). If an employer is within the 180-day H-1B extension filing period now, it should strongly consider filing with Premium Processing before the suspension takes effect on April 3, 2017. H-4 spouses who have a pending EAD work permit renewal application filed concurrently with a pending H-1B/H-4 extension should pursue Premium Processing prior to April 3, 2017, to best avoid gaps in work authorization. F-1 international students who will be filing H-1B cap-subject cases should seek legal advice before traveling overseas between April 3, 2017, and October 1 (or whenever the H-1B FY18 cap petition is approved). H-1B beneficiaries should review their states’ rules regarding driver’s license renewals to determine whether they will be required to present an approval notice to renew their driver’s licenses, and in case of H-1B processing delays, make alternative arrangements for transportation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.