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On August 28, 2018, the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (“USCIS”) announced that it is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. The suspensions are expected to last until Feb. 19, 2019, and USCIS will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, USCIS will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.

Who is affected?

Per the USCIS announcement, the expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).  The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

USCIS will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, USCIS will refund the premium processing fee if:

  • The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
  • USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

Premium processing remains available for certain H-1B petitions

Per the USCIS announcement, the suspension does not apply to:

  1. Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
  2. Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” with a concurrent request to:
    1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted; or
    2. Extend the stay of each beneficiary because the beneficiary now holds this status.

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

Requesting expedited processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on USCIS’ Expedite Criteria webpage. The petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request.  USCIS reviews all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why is USCIS temporarily suspending premium processing for H-1B petitions?

According to USCIS, this temporary suspension will help to reduce overall H-1B processing times by allowing USCIS to:

  • Process long-pending petitions, which USCIS has been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
  • Be responsive to petitions with time-sensitive start dates; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

What this means for employers and potential H-1B beneficiaries

Many employers had planned to request Premium Processing on September 10, 2018 in anticipation of the suspension of Premium Processing being lifted. Employers and potential H-1B beneficiaries will benefit for discussing with immigration counsel how this suspension will impact individual H-1B cases, including anticipated start dates for H-1B beneficiaries.

 

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach, Winter Park, and its headquarters in West Palm Beach. With more than 180 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.


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