United States Citizenship and Immigration Services (USCIS) has announced that, beginning September 11, 2018, premium processing service, which guarantees approval or a request for additional information within 15 days of filing, will not be available for most H-1B petitions until an estimated date of February 19, 2019.
The suspension in premium processing service will affect H-1B transfer petitions. Individuals in H-1B status who transfer from one employer to another are eligible to begin working for the new employer once USCIS has received the transfer petition; it is not necessary to wait for approval of the transfer petition. However, because of the risk that the transfer petition will be denied, many individuals prefer to move to the new employer only after the transfer petition has been approved; therefore, they rely on premium processing service to obtain a quick response from USCIS.
H-1B transfer petitions will likely take 3-6 months to process under regular (non-premium) service. Because of the additional scrutiny that USCIS is currently placing on H-1B petitions, H-1B employers and employees alike should be aware of the risks of having the employee move to the new employer before the transfer petition has been approved. If the H-1B transfer petition is denied, the employee will need to stop work immediately. Further, the employee may be at risk of removal from the United States following the denial of the H-1B transfer petition. We encourage employers to contact legal counsel to discuss these risks if they are considering extending job offers to H-1B workers while premium processing service is unavailable.
The suspension in premium processing service will continue to affect pending 2018 H-1B cap cases. Certain F-1 students who are waiting for H-1B approval will experience gaps in their employment authorization if their H-1B petitions are not approved by October 1, 2018, the start date requested on H-1B cap cases. Employers should be sure to confirm with counsel whether their H-1B cap beneficiaries will be eligible to work while USCIS continues to process their pending H-1B cases. The loss of premium processing service will also likely delay approvals for H-1B cap beneficiaries who are outside of the United States. Employment start dates will need to be changed in many cases.
USCIS has indicated that it is suspending H-1B premium processing service so that it may process long-pending petitions and so that it may be responsive to petitions with time-sensitive start dates. The agency will notify the public before it resumes premium processing service for all H-1B petitions.
Note: During this period of time, USCIS will continue to accept premium processing requests for the following H-1B petitions:
- H-1B petitions filed by cap-exempt institutions (or on behalf of employees who will work at qualifying cap-exempt institutions), which include institutions of higher education, nonprofit organizations related to or affiliated with institutions of higher education, and nonprofit or governmental research organizations.
- H-1B extension petitions filed by the same employer, without change in the previously-approved H-1B employment.