After weeks of anxious speculation by immigration attorneys and their clients, the US Citizenship and Immigration Services (USCIS) finally announced their premium processing strategy for this year's H-1B cap season, and it's ... complicated:
- H-1B cap petitions requesting a change of status may request premium processing when the case is initially filed during the first week of April;
- The 15 day premium processing clock for change of status cases will not start until USCIS notifies the public sometime before May 20, 2019;
- If premium processing is not requested with an initial change of status petition, a case will not be eligible to upgrade to premium processing until USCIS notifies the public that premium processing has begun; and
- H-1B cap petitions not requesting a change of status, but instead requesting consular/port-of-entry notification, will not be eligible to upgrade to premium processing until USCIS notifies the public, which will not be until June 2019 at the earliest.
What does this mean, exactly?
Premium processing guarantees that, for an additional $1,410 government filing fee, USCIS will adjudicate a case (approve, deny or issue a Request for Evidence) within 15 calendar days. The 15 days normally begins when the premium processing request is submitted. However, for H-1B cap cases the 15 days will start when USCIS says so – no later than May 20, 2019 for change of status cases and sometime in June (or later) for all other cases.
When an H-1B petition is filed, it must indicate whether the beneficiary wishes to change status or notify a consulate or port of entry. A change of status means that once the H-1B cap petition is approved, the beneficiary's nonimmigrant status will automatically change from their current status (such as F-1 student) to H-1B temporary worker effective October 1, 2019. Consular/port-of-entry notification means that the beneficiary's nonimmigrant status will not automatically change on October 1. Instead, after the H-1B petition is approved, the beneficiary will need to activate their H-1B status by first applying for an H-1B visa at a US consular post abroad (unless the beneficiary is a visa exempt Canadian citizen) and returning to the United States in H-1B status on or after October 1, 2019.
Why would an H-1B cap petition request consular/port-of-entry notification instead of a change of status?
Consular/port-of-entry notification is used in various situations, including when a beneficiary: (a) is not physically present in the United States when the H-1B petition is received by USCIS; (b) has international travel plans after the petition is filed but before it is expected to be approved; or (c) wishes to remain in their current nonimmigrant status for a longer period of time.
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.