March 20, 2018 marked yet another startling announcement for H-1B holders. Just like the previous year, the premium processing service will be suspended for all H-1B petitions filed on or after April 2, 2018 for the 2019 cap. The USCIS stated that this suspension will continue until September 10, 2018. After that, they plan to accept premium processing petitions as usual. Keep reading to learn the details.
IMPORTANT UPDATE (1/31/2019)
The USCIS has recently announced that the premium processing suspension has been lifted for all H-1B petitions filed for the FY 2019 cap. This means that these petitions will now be processed. However, petitions filed for any other season (including the FY 2020) are still under the suspension.
What Does Premium Processing Do?
Premium processing is an optional service provided by the USCIS that expedites the petitions for certain visas to 15 calendar days. Since the processing time for most petitions averages at about six months, premium processing is usually an attractive option for most petitioners. This option is only available for certain visas using the I-129 and the I-140 petition forms. The H-1B is one such visa.
To apply for this service, you must file an I-907 form along with your petition and the $1,410 premium processing fee. Under most circumstances, this fee would be the employer’s responsibility, though the beneficiary can cover the cost if there is a written statement that opting for premium processing primarily benefits the beneficiary and not the employer.
While premium processing does not increase your chances of being selected in the lottery or your chances of being approved by the USCIS, for many people who are extending or transferring their statuses, premium processing can be a great advantage. Unfortunately, for reasons that we will soon cover, this option has been temporarily suspended for H-1B visas in the 2019 fiscal year.
Click here to read the full statement from the USCIS.
How Will This Affect My Petition for 2019?
Due to the fact that the 2019 H-1B season begins on April 2nd and that is the date that the suspension will take place, this hiatus will cover the entire lottery window. This means that all cap-subject 2019 petitions for H-1B visas will be ineligible for the premium processing service. Keep in mind that premium processing will also be suspended for petitions under the master’s cap.
However, the alert also stated that petitions that are not subject to the cap (cap-exempt) are still eligible for premium processing during this time. So, if you are an institute of higher education, nonprofit associated with one such institute, or a governmental research center, the USCIS is still accepting premium processing forms.
Additionally, if you are filing a petition to transfer or extend an H-1B status, you are not subject to the 2019 cap and can, therefore, file an I-907 for premium processing.
It is important to note that premium processing may or may not be advantageous for your case if you are filing for the 2019 cap. Whether or not premium processing is granted, you will still need to wait six months between April 2nd and October 1st before being able to start work as an H-1B employee. Speak with your immigration attorney to determine whether or not having premium processing suspended has a large impact on your case.
Why Has Premium Processing Been Suspended?
The USCIS has listed two main reasons for having premium processing suspended:
- So that they can get to petitions that have been waiting for an extended period of time due to the fact that there has been a recent influx of premium processing petitions over the past several years that always take priority.
- So that petitions for H-1B extensions can be processed before the 240 day mark. Because extension of status is such a time-sensitive process, the USCIS is allowing for those petitions to be adjudicated so that fewer people are forced to leave the country.
Is Premium Processing Suspended for Other Visas?
Premium processing has only been suspended for H-1B visas and all other visas requiring an I-129 are unaffected by this suspension.
Will We Get a Refund?
If you filed the I-907 petition before the beginning of the suspension (April 2nd) and the USCIS failed to process your petition in 15 calendar days, you will receive a refund. This is the only case concerning premium processing in which you can expect to be refunded. If you file your I-907 after April 2nd, (which you must do if you are filing for the 2019 cap), your premium processing request will be rejected and your fees will not be refunded.
The USCIS also stated that, if you included the premium processing fee and your I-129 filing fee in the same check and you request premium processing after April 2nd, both your I-907 and your I-129 will be rejected, so keep this in mind if you are considering including your fees in one check.
Are There Any Other Options?
Fortunately, the USCIS has listed the criteria for special expedite requests. If you meet one or more of the following requirements, the Service may consider expediting your petition without premium processing:
- If the employer or employee will suffer “severe financial loss” without an expedited petition
- For humanitarian circumstances
- If the petition is from a non-profit organization that request expedition for U.S. cultural and social reasons
- If there has been an error on the part of the USCIS
- If a U.S. government entity specifically requests expedition
- If there is some other compelling interest on the part of the USCIS
- If there is a hitherto unidentified emergency situation
The USCIS reviews these requests strictly on a case-by-case basis. There is no guarantee that your petition will be expedited even if it meets one or more of these criteria. It is up to you as the petitioner or beneficiary to provide proof that the criteria are met.