USCIS Suspension of H-1B Premium Processing

September 20, 2017

 
Updates

USCIS has restored Premium Processing for the following types of H-1B petitions:

  • Petitions that must be counted against the FY 2018 H-1B cap. USCIS announced on September 18, 2017, that it "resumed premium processing today for all H-1B visa petitions subject to the Fiscal Year year (FY) 2018 cap. The FY 2018 cap has been set at 65,000 visas. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree."

  • Cap-exempt petitions. USCIS announced on July 24, 2017 that it resumed premium processing for petitions that are exempt from the cap because the H-1B petitioner is: An institution of higher education; A nonprofit related to or affiliated with an institution of higher education; A nonprofit research or governmental research organization; or Petitions that are exempt because the beneficiary will be employed "at" one of the above qualifying cap-exempt institutions, organizations or entities.

  • Conrad and IGA waiver petitions. USCIS announced that on June 26, 2017, it resumed premium processing for H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. These two programs provide for waivers of the J-1 two-year home residence requirement in conjunction with the filing of an H-1B petition for an individual who would otherwise be subject to the 2-year requirement for having participated in the J-1 exchange visitor program as an alien physician.

Premium processing remains temporarily suspended for all other H-1B petitions.

Background

On April 3, 2017, USCIS temporarily suspended premium processing for all H-1B petitions, unless premium processing had already been requested prior to April 3. USCIS said the suspension could last up to 6 months, and initially applied to all Form I-907 H-1B premium processing requests filed on or after April 3, 2017. Premium processing is the USCIS option that allows certain petitioners to pay an extra $1,225 fee for USCIS to take action on their petition within 15 calendar days of filing.

Read the USCIS H-1B Premium Processing Suspension Notice

On March 22, 2017, NAFSA joined the Association of American Medical Colleges, the Association of American Universities, the Association of Public and Land-grant Universities, and the College and University Professional Association for Human Resources, in a letter asking USCIS to reconsider its plan to suspend the H-1B premium processing option, describing the number of ways a suspension would disproportionately impact academic and medical institutions.

Read the Associations' Letter to USCIS

Since the original announcement, Premium Processing has been restored for the following types of H-1B petitions:

  • Petitions that must be counted against the FY 2018 H-1B cap. USCIS announced on September 18, 2017, that it "resumed premium processing today for all H-1B visa petitions subject to the Fiscal Year year (FY) 2018 cap. The FY 2018 cap has been set at 65,000 visas. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree.

  • Cap-exempt petitions. USCIS announced on July 24, 2017 that it resumed premium processing for petitions that are exempt from the cap because the H-1B petitioner is: An institution of higher education; A nonprofit related to or affiliated with an institution of higher education; A nonprofit research or governmental research organization; or Petitions that are exempt because the beneficiary will be employed "at" one of the above qualifying cap-exempt institutions, organizations or entities.

  • Conrad and IGA waiver petitions. USCIS announced that starting June 26, 2017, it resumed premium processing for H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. These two programs provide for waivers of the J-1 two-year home residence requirement in conjunction with the filing of an H-1B petition for an individual who would otherwise be subject to the 2-year requirement for having participated in the J-1 exchange visitor program as an alien physician.

Premium processing remains temporarily suspended for all other H-1B petitions.

Some points to take note of

  • The suspension also applied to cap-exempt H-1B petitions, including those filed by institutions of higher education and nonprofit organizations affiliated with an institution of higher education, until USCIS restored premium processing for those groups effective July 24, 2017. Effective July 24, 2017, these cap-exempt petitioners may once again request premium processing. USCIS also restored premium processing for petitions that are exempt because the beneficiary will be employed "at" a qualifying cap-exempt institution, organization or entity.
  • USCIS will reject any Form I-907 filed with an H-1B petition for which premium processing has not yet been restored. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.
  • H-1B premium processing requests filed before April 3, 2017 and still pending as of that date were premium processed, as long as the petitioner properly filed an associated Form I-907 before April 3, 2017.
  • Only H-1B premium processing was affected. Other types of petitions eligible for premium processing continue to be eligible after April 3, 2017, i.e.:
    • Form I-129 petitions in the E-1, E-2, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, and TN categories; and
    • Form I-140 petitions filed for: EB-1 aliens of extraordinary ability, EB-1 outstanding professors and researchers, EB-2 members of professions with advanced degrees or exceptional ability who are not seeking a National Interest Waiver, EB-3 Professionals (immigrant workers with bachelor degrees who are members of the professions), EB-3 Skilled Workers (immigrant workers capable of performing skilled labor requiring at least two years of education, training or experience), and EB-3 workers other than skilled workers and professionals.
     

Possibility of using general USCIS expedite criteria?

USCIS does state that petitioners ineligible for premium processing continue to have the option to request standard expedited handling of a petition, under general expedite criteria applicable to all benefit requests.

Visit the USCIS Expedite Criteria webpage

USCIS expedite criteria would require an impacted H-1B petitioner to establish at least one of the following, and to support the expedite request with "documentary evidence."

  1. Severe financial loss to company or ​person​;​
  2. Emergency situation;​
  3. Humanitarian reasons;​
  4. Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  5. Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  6. USCIS error; or
  7. Compelling interest of USCIS.​

However, expedited handling is a highly discretionary, case-by-case decision on the part of individual USCIS adjudicators, and H-1B petitioners that are still impacted by the premium processing suspension will have to plan accordingly for standard USCIS processing times (which can be many months) of their H-1B petitions that do not qualify for expedited processing.

Why did USCIS do this?

In its notice, USCIS explained its rationale for suspending the H-1B premium processing program:

"This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark"

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