August 29, 2018
Immigration Law Alert
Immigration Law Alert
Author(s): Jason Gerrol
Beginning September 11, 2018, U.S. Citizenship and Immigration Services (USCIS) will extend the previously announced suspension of Premium Processing service for cap-subject H-1B petitions, and expand the suspension to include additional H-1B petitions, including H-1B Change of Employer petitions. The Premium Processing suspension is estimated to last until February 19, 2019.
The Premium Processing suspension does not apply to H-1B petitions filed by cap-exempt employers (i.e., institutions of higher education, non-profit entities related to or affiliated with such institutions, nonprofit research organizations or government research organizations), or where the foreign national will be employed at a cap-exempt institution. In addition, the suspension does not apply to H-1B extension petitions (i.e., “Continuation of previously approved employment without change with the same employer”).
The Premium Processing suspension will apply to all other H-1B petitions, and may significantly impact foreign nationals awaiting approval of their cap-subject H-1B petition (i.e., those petitions selected in this year’s H-1B “lottery”), and current H-1B workers desiring to “port” to a new employer, as discussed below.
Employers may request Premium Processing service to expedite the USCIS adjudication of certain employment-based petitions and applications, including H-1B petitions. Specifically, in exchange for an additional filing fee of $1225, USCIS will adjudicate a Premium Processing eligible petition within 15 calendar days of the Premium Processing request receipt date. Without Premium Processing, the USCIS processing times for certain petitions may be several months to over one year.
The suspension impacts two primary categories of H-1B petitions: (1) cap-subject H-1B petitions (i.e., those petitions selected in this year’s H-1B “lottery,” and currently under USCIS review), and (2) all other H-1B petitions, except cap-exempt H-1B petitions and “continuation of previously approved employment without change with the same employer” petitions noted above.
Many cap-subject petitions were filed on behalf of F-1 international students whose work authorization will expire September 30, 2018 (if currently working pursuant to a “cap-gap” extension of employment authorization). If approved in a timely manner, their H-1B petition would have allowed for an October 1, 2018 effective date, creating a seamless transition of work authorization between their current F-1 work authorization and prospective H-1B work authorization. While USCIS previously suspended Premium Processing service for cap-subject petitions, that suspension was expected to last until only September 10, 2018, allowing at least a brief period of time to request Premium Processing service and secure an approval of an H-1B petition by October 1, 2018. The extension of the Premium Processing suspension until an estimated date of February 19, 2019 may have negative consequences for the continued work authorization of these foreign nationals that should be evaluated by immigration counsel.
In addition, the Premium Processing suspension will apply to H-1B Change of Employer petitions. As a general rule, a foreign national already working for a cap-subject employer in valid H-1B status may begin working for a new cap-subject employer upon the filing of an H-1B Change of Employer petition with USCIS. In other words, an approval of that petition is not required for the employee to begin working for a new employer, so long as USCIS ultimately approves the H-1B petition. However, should USCIS deny the Change of Employer petition after the employee has changed employers, the employee will be left without valid legal status and, in some cases, may begin accruing unlawful presence (i.e., be deemed “not lawfully present” by USCIS). For this reason, many employers routinely request Premium Processing service to ensure the H-1B Change of Employer petition is approved before the employee commences employment, thereby greatly reducing or eliminating any risks during the change of employer process. The suspension of Premium Processing will require new employees to either take those risks or delay starting employment with the new employer for several months.
Furthermore, the Premium Processing suspension will also apply to H-1B amendment petitions. As a general rule, an employer is required to file an H-1B amended petition on behalf of an H-1B employee in the event of a material change in the terms and conditions of employment, a significant change in job duties or a change of location that is beyond the area of employment specified in the underlying Labor Condition Application. Like H-1B Change of Employer petitions, an amended H-1B petition does not need to be approved in order for the employee to continue employment, but a denial of the H-1B amendment petition may leave an employee “not lawfully present” if their underlying H-1B petition has expired.
Under a new USCIS policy, USCIS may issue a Notice to Appear (NTA), the mechanism to initiate immigration removal proceedings, where the denial of a petition, including an H-1B petition, leaves the foreign national not lawfully present in the U.S. Employers should therefore carefully consider the lack of Premium Processing service when evaluating H-1B Change of Employer petitions and H-1B Amendment petitions, and the impact of a denial of that petition on their employee’s or prospective employee’s immigration status.
The Premium Processing suspension is already in effect for H-1B cap-subject petitions. The suspension for additional types of H-1B petitions, such as H-1B Change of Employer petitions, will go into effect September 11, 2018. For those petitions currently eligible for Premium Processing, USCIS will continue to accept Premium Processing requests submitted prior to September 11, 2018, but may refund the Premium Processing fee if they are unable to adjudicate the petition within the 15-calendar day processing period.
USCIS expects the Premium Processing suspension to last until February 19, 2018.
No. It is unlikely USCIS will make any exceptions during the suspension period, although they will accept a request to expedite an H-1B petition under certain criteria, such as an emergency situation that requires expedited H-1B approval, or where the lack of Premium Processing will result in severe financial loss to the employer. However, as a general rule, USCIS considers a petition eligible for expedited treatment under very limited circumstances.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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