Since 2001, USCIS has offered its Premium Processing Service that allows a supplemental fee ($ 1,225) along with submitting Form I-907 (can be requested at the time of filing the case or upgraded later) to get a guaranteed faster processing time (15 calendar days) in many employment-related types of applications. If an RFE or NOID is issued, USCIS’ 15-day clock resets after the agency receives a response from the petitioner or applicant.
On March 3rd, 2017, US Citizenship and Immigration Services announced that beginning on April 3rd, 2017, it will suspend for up to 6 months premium processing on all H-1B petitions. Premium processing cases filed before that date will continue to be premium processed even if the decision is not reached on the case until after April 3rd. H-1B cases filed before April 3rd using regular processing cannot be upgraded to premium processing after April 3rd. USCIS also noted that it will refund premium processing fees if it is unable to adjudicate a case within 15 days which has led some to speculate that it may not honor the 15 days-time frame for all the cases filed before April 3rd and will simply refund the fees in cases it chooses not to adjudicate under the premium timeframe. USCIS has suspended premium processing from time to time in the past years which was limited to a few weeks or to a subset of application types. However this announcement represents a much broader suspension in the 16-year history of premium processing program.
Impacts of the Suspension:
1. Any employers needing to change an individual from one visa category to another will be impacted. That could especially impact the J-1 waiver program for doctors who obtain physician training in the US on J-1 visas to medically underserved communities across the country. Physicians often can’t complete their J-1 waiver processing until the late spring and depend on premium processing to get to their new communities by their intended July 1st start dates.
2. Hundreds of thousands of patients across the US could potentially have their health care delivery disrupted.
3. Many states will not extend a driver’s license for a non-immigrant until an extension or change of status application is approved.
4. Since backlogs extend beyond six months for regular processing cases already, many employers and beneficiaries selected in the lottery will not be able to begin work on October 1st as requested unless USCIS improves regular processing times.
5. Some F-1 students on optional practical training may be able to continue working under cap-gap rules which allow one to work with authorization while an H-1B change of status application is pending. Many others won’t be eligible because they do not qualify for cap-gap since it only applies to cases filed in the first week in April.
6. H-1B extension applicants are authorized to work for 240 days while an H-1B extension application is pending. USCIS has been taking more than 240 days for H-1B extensions in recent months but has not clarified its position regarding whether employing individuals beyond 240 days is considered a violation of immigration law.
7. Travel is also likely to be disrupted even if individuals are authorized to continue working while a regular processing application is pending (see below).
USCIS has a process to request expedited processing in urgent cases and will approve such requests on a case-by-case basis. USCIS has stated that the requester has the burden of documenting one or more of the following apply to the petitioner or the beneficiary:
• Severe financial loss to company or person
• Emergency situations
• Humanitarian reasons;
• Non-profit organization whose request is in furtherance of the cultural and social interests of the United States
• Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
• USCIS error; or
• Compelling interest of USCIS.
To request an expedite, petitioners should contact the National Customer Service Center (NCSC) at 1-800-375-5283 and the NCSC will forward the request to the USCIS Service Center adjudicating the case. Expedites can also be requested via the InfoPass appointment system at local USCIS offices or via writing a letter to the field office or service center. If a person is overseas, the request should be made directly to the USCIS office with jurisdiction over the petition.
USCIS claims it is suspending cases in order to be able to concentrate on adjudicating the significant volume of cases in its backlog and to ensure that extension cases are adjudicated within 240 days. Some are also speculating that the suspension is an attempt to “slow walk” the H-1B program and make it less attractive for the employers and foreign nationals.