Last week, United States Citizenship and Immigration Services announced the temporary suspension of premium processing services for H-1B visa cap petitions for the 2019 fiscal year.

“Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. We will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, we will continue to accept premium-processing requests for H-1B petitions that are not subject to the FY 2019 cap. We will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.”

The temporary suspension applies to H-1B petitions filed on or after the April 2nd date, and is expected to last for up to six months.

In specific, urgent cases, employers will be able to request a expedited processing speed for submitted petitions, but only if the case meets restricted USCIS expedite standards. These exceptions are only granted in very rare circumstances, including emergencies ranging from humanitarian crises, situations involving significant economic loss to the employer or foreign individual, and other specific contexts.

While premium processing will be temporarily suspended for H-1B petitions, it is expected to remain available for other nonimmigrant petitions filed through Form I-129 (including L-1 and O-1 petitions), and for qualifying I-140 petitions.

EMPLOYERS

All FY 2019 H-1B cap cases will be ineligible for premium processing until USCIS ends the suspension. Even though USCIS has stated that it will recognize premium-processing requests for non-cap petitions that were submitted prior to, and remain pending on April 2nd, there is room for doubt, and the possibility that this could change in the near future remains.

H-1B extensions can only be filed within the six months before the end of the beneficiary’s original period of stay. However, H-1B holders who file their extension within this period are able to benefit from up to 240 days of additional work authorization past their end date while their case remains pending.

EFFECT ON THE FY 2019 FILING SEASON

The announcement and suspension determines that FY 2019 H-1B cap petitions will not qualify for 15-day expedited processing until the suspension is removed. Though premium processing does not impact the likelihood that an H-1B petition will be selected within the cap lottery, it does give greater certainty to beneficiaries – specifically F-1 student visa holders who are changing status to H-1B, including those whose optional practical training (OPT) or course of study will end between April 2 and October 1.

EFFECT ON TRAVEL

The suspension could also inhibit a foreign-born individual’s capability to travel outside of the country between April 2nd and the H-1B cap petition date of approval. Traveling with a pending change of status before approval will cause it to be deemed abandoned (though the original H-1B petition remains approvable). An individual who travels internationally before the change of status is approved would need to take additional actions to earn H-1B status on October 1.

D’Alessio Law Group closely tracks USCIS processing of H-1B petitions and will deliver updates as new developments follow. If you have any questions about USCIS’s announcement, suspension, or details surrounding H-1B premium processing, including any effect on proposed international travel, please contact your D’Alessio Law Group professional at (310) 909-3934.

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