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September 2018 Immigration Analysis - Temporary Suspension of Premium Processing for Certain H-1B Filings - September 28, 2018

In our final post in this series looking at the current state of various aspects of immigration law, we are diving into H-1B, specifically the temporary suspension of premium processing for certain H-1B filings.


Catch up with the previous posts in this series: travel banchanges to advance paroledeference to prior determinationsdenials, and unlawful presence for students.


USCIS has suspended the premium processing program for certain H-1B filings received on or after September 12, 2018, and those that were pending in the H-1B “cap.”   The suspension is expected to continue at least until February 19, 2019.


Premium processing allows a petitioner to pay an additional filing fee in return for action on the filing within 15 calendar days.  The action may not be approval but could be a request for evidence or a denial.  If a request for evidence is issued, USCIS must act within 15 calendar days after the response is received. The current premium fee is $1,250, but it will increase to $1,410 on October 1, 2018.


The suspension affects only H-1B filings.  Also, certain H-1B filings are exempt and may still utilize premium processing.  Those that may still use premium processing are:

  • “Cap-exempt” petitions based on employment by a cap-exempt institution or the beneficiary being employed at a cap-exempt institution.  Cap-exempt institutions are non-profit colleges and universities and their non-profit affiliates.  A petition for a person employed at (but not employed by) a cap-exempt institution is cap-exempt if the work is consistent with the mission and purpose of the cap-exempt institution. Although not stated in the announcement, we have confirmation that this exemption also includes physicians who received a J-1 waiver. These petitions are filed exclusively with the California Service Center.

  • Petitions for continuation of previously-approved employment without change for the same employer, whether an extension of stay or consular processing is requested.  These petitions are exclusively filed with the Nebraska Service Center.

The stated reason for the suspension is to catch up on the backlog of petitions not filed premium processing because of the large number of premium processing requests filed in the last several months.  Of course, the reason for more premium processing filings is the many changes USCIS has implemented that cause uncertainty in the system.


If premium processing is not available, a request to expedite a petition may still be filed if it meets the criteria set forth by USCIS: 

  • Severe financial loss to company or person;
  • emergency situation;
  • humanitarian reasons;
  • nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (must come from an official U.S. government entity and state that delay will be detrimental to the government);
  • USCIS error; or
  • compelling interest of USCIS. 

No fee is paid for a request to expedite, but documentation must be provided, and a specific process followed.


Conclusion

From our vantage point, the immigration system is a necessary and beneficial compliment to the U.S. workforce.  We are awed at the many talents, skills and patriotic spirit our immigrant clients bring to our country. While we are sorry that the process has become even more difficult and wrought with worry for applicants, we are inspired by the courage of our clients and the real needs that are being filled by those choosing to contribute to the United States.


The law has not changed and the need for immigration has not changed.  Therefore, we continue to help our clients follow the law and navigate the system, and we appreciate the opportunity to do so.



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