Immigration Matters - 2017


USCIS Suspends H-1B Premium Processing Before Cap Season Deadline

Courtesy of Challa Law

The H-1B visa is a popular nonimmigrant visa category for temporary workers with specialized knowledge. The H-1B visa requires a bachelor's degree or higher degree that is related to the specialty occupation for which they are applying. Historically, this visa has been highly sought by employees and employers, causing lengthy processing times due to the high volume of petitions each year. Premium processing allows a petitioner or beneficiary to pay an increased fee and file a Form I-907 so USCIS will adjudicate the petition in 15 days. However, USCIS announced that it will suspend all premium processing requests for H-1B petitions starting on April 3, 2017.

USCIS claims that this suspension will allow the processing of petitions that have been “long-pending" due to the “high volume of incoming petitions and the significant surge in premium processing requests over the past few years." The statement by USCIS also states that the temporary suspension will allow the officers to prioritize extension of status cases nearing the 240-day mark.

This applies to all FY18 regular and master's advanced degree cap-subject H-1B petitions, in addition to any cap-exempt petitions filed after this date. H-1B extensions and petitions not subject to the cap are still eligible for premium processing prior to the effective date.

The 240-day period is relevant because assuming a timely extension of status application is filed before the I-94 expiration date, an H-1B employee might be eligible to continue working for up to 240 days beyond the current period of stay. This time is not considered to be granting a “lawful nonimmigrant status" but also does not qualify for an “unlawful presence" while the extension of status application is pending. This authorization would not be extended if you have violated the terms of your nonimmigrant status. You also may be required to stop working and leave the country when the 240 days elapse, or if USCIS denies your extension application.

It is important to note that during the suspension of premium processing, all Form I-907s (Requests for Premium Processing Service) will be rejected. The Form I-129, Petition for a Nonimmigrant Worker, filed for H-1B employees, could also be rejected if one check is written with the H-1B fees and premium processing fees combined.

While premium processing is suspended, you may still be eligible to expedite your request. Below is chart of the criteria and examples of potential reasons to expedite an H-1B petition:

Expedite Criteria: (Example)

Severe financial loss to company or person: (Time-sensitive project costing significant financial loss if petition is not adjudicated)

Emergency situation: (Applicant/Beneficiary is gravely ill)

Humanitarian reasons:?(Outbreak of war in the home country)

Nonprofit whose request is in furtherance of the cultural and social interests of the U.S.:?(Organization broadcasting in regional areas to promote democratic interests)

Department of Defense or national interest situation: (Request from official U.S. government entity; delay would be detrimental to the govt.)

USCIS error: (USCIS erroneously rejects an application or misses information that was included)

Compelling interest of USCIS:?(No example given; discretionary)

These criteria are more likely to be successful if documentary evidence is provided to support the expedite request. If the beneficiary has a medical condition, a doctor's note might be helpful in proving expedited processing is necessary. Similarly, if the petitioner claims a severe financial loss could occur, contracts or project details should be shared with USCIS to prove the potential loss.

Filing Tips

• File all premium processing extensions or petitions prior to April 3, 2017.

• Do not include Form I-907 with H-1B petitions or extensions after April 2, 2017.

• Write separate checks for Form I-907 and Form I-129 to minimize the chance both forms will be rejected.

• Include appropriate documentary evidence for the original petition to minimize the chance of a “Request for Evidence" or RFE.

Contact us at info@challalaw.com with any questions regarding filing an H-1B petition or requesting expedited processing. For more details, visit www.ChallaLaw.com.