Earlier this year the United States Citizenship and Immigration Service (USCIS) announced that it would suspend premium processing for all H-1B petitions.  The suspension was to allow USCIS to reduce its backlog of non-premium processing cases.   On September 27, 2017 the USCIS Service Center Operations informed the American Immigration Lawyers Association that it is “on track to resume premium processing for all H-1B petitions on or before October 3, 2017.”

Premium processing is a service offered by USCIS that promises a response in 15 calendar days.  A petitioner may submit its petition for a nonimmigrant employee to USCIS with a request for premium processing on Form I-907 and a fee of $1,225.  In 15 days USCIS will respond with an approval, a denial, or a request for additional evidence.  Premium processing is not available for all petition types, but has historically always been available for H-1B petitions.

On July 24, 2017 USCIS announced that it had resumed premium processing only for one type of cap-exempt H-1B petition.  Employers anxiously awaited similar news for all types of H-1B petitions.

Note: practically speaking, the suspension of premium processing had a limited legal affect on several types of H-1B cases.  H-1B cap cases were not affected significantly because those employee-candidates were not eligible to begin work pursuant to H-1B status until October 1, 2017.  Most cap cases were approved well before October 1 without premium processing.  Additionally, if an employee is already in H-1B status pursuant to a petition filed by one employer, he or she can usually “port” his or her H-1B status to a new employer.  This doctrine of H-1B portability allows the employee to start working for the new company as soon as the new company files its H-1B petition for that employee.  Since the new company does not need an approval notice — only to file the petition — the suspension of premium processing did not greatly affect the employee’s eligibility to start working.  However, in each of these cases, both employers and employees preferred to rely on the assurance afforded with a 15-day response.  Moreover, USCIS issues an emailed Receipt Notice for premium processing cases, which allows an employee to “port” his or her status to a new employer faster — often in one to three days.  Without premium processing, employers must wait for the paper receipt notice to arrive as proof that the new company has properly filed a new H-1B petition.  Paper receipt notices may arrive in one to three weeks (versus one to three days).  There are other forms of proof and you should contact yoru Immigration counsel to discuss special circumstances.

We are currently awaiting an official announcement and further details from USCIS.  We recommend employers, petitioners and interested parties check the USCIS website www.uscis.gov.

 

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Photo of Dustin J. O'Quinn Dustin J. O'Quinn

Dustin O’Quinn counsels clients of all sizes, from startups to Fortune 100 companies, in all areas of immigration law with a focus on the technology, energy, design and financial industries.

He develops immigration programs for startup companies in the technology industry and counsels clients on corporate structure, funding and investor relations. He also advises large corporations on the immigration implications of mergers and acquisitions, I-9 compliance and government audits.

Dustin has significant experience representing employers in H-1B, H-2B, H-2A and L-1 visa matters, as well as uncommon classifications, including investor and extraordinary-ability visas, and maritime immigration matters.

Chambers USA’s Guide to America’s Leading Lawyers for Business and its sources have stated that Dustin “stands out for his honest and humble demeanor, as well as his inclusive approach,” and for “his willingness to answer all questions.”