UNITED STATES: Temporary suspension of premium processing of FY 2019 H-1B Cap Petitions 

Starting 2 April 2018, the United States Citizenship and Immigration Services (USCIS) will temporarily suspend processing of all FY 2019 H-1B filings which is expected to last until 10 September 2018.  The USCIS have, however, indicated that they will continue to accept premium processing requests for non-cap H-1B cases, which consist of extensions and most changes of employer.

The suspension is to allow the USCIS to process long-pending petitions and prioritise adjudication of H-1B extensions that are getting closer to the 240-day mark.  All Form 1-907 requests for premium processing that are filed with a FY 2019 cap-subject H-1B petition will be rejected.  Also, if the premium processing fee is combined in a single check with other H-1B cap fees, the agency will reject the petition package.

In urgent situations, employers can request faster processing if the case meets the USCIS’s expedite criteria.  Expedites are, however, granted at the USCIS’s discretion and are not common practice.  They are reserved for emergencies, humanitarian situations and a few other extremely limited situations.

How does this affect the client?

Employers and foreign nationals should be aware that FY 2019 H-1B cap cases will not be eligible for 15-day processing until the premium suspension is lifted. The suspension could also delay a foreign nationals' ability to travel internationally between April 2 and the approval of the H-1B cap petition. Travel while a change of status is pending, prior to approval, will cause it to be deemed abandoned (though the underlying H-1B petition remain approved). For foreign nationals who travel abroad before the change of status is approved, they would need to take extra steps to assume H-1B status on October 1.

Even though premium processing does not affect the chances that an H-1B petition will be selected in the cap lottery, it does provide greater certainty to beneficiaries.  Particularly F-1 students who are changing status to H-1B and whose optional practical training (OPT) or course of study will end between 2 April and 1 October, a period known as the “cap gap.”




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