September 19, 2017

H-1B Premium Processing Returns for FY2018 H-1B Cap Cases

On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that premium processing will resume for a limited type of H-1B petition. USCIS will resume premium processing for all H-1B petitions subject to the Fiscal Year (FY) 2018 cap.

Upgrading to Premium Processing

USCIS suspended premium processing for all H-1B cases on April 3, 2017. In the September 18, 2017, announcement, USCIS indicated that premium processing will resume for the 65,000 visas filed under the regular FY2018 H-1B cap, as well as the additional 20,000 H-1B visas that are made available for students who have obtained a U.S. master’s degree or higher. The H-1B cap cases filed on April 1, 2017, for an October 1, 2017, start date are those filed under the FY2018 H-1B cap. Those cases that remain pending that were filed under the FY2018 H-1B cap may now be “upgraded” to premium processing. Form I-907, Request for Premium Processing Service, and the $1,225 premium processing filing fee will need to be part of these upgrade requests for pending cap cases to be processed with premium processing. With premium processing, USCIS will process (approve, deny, send request for additional evidence) within 15 days of receipt of the premium processing filing request. With the number of Requests for Evidence (RFEs) being issued by USCIS on H-1B cap cases, employers should strategically consider whether to file an upgrade to premium processing. Although some cases will need the upgrade to premium processing for employees to have ongoing work authorization beyond October 1 — other cases may not require work authorization as soon as October 1 and may benefit by USCIS not “rushing” to issue an answer in 15 days.

For more information about USCIS premium processing, visit the agency’s How Do I Use the Premium Processing Service? FAQs.

Status of Other Visa Petitions

Premium processing remains suspended for H-1B extensions, amended H-1B petitions and H-1B change of employer petitions. USCIS emphasized in its announcement that premium processing of other remaining H-1B petitions not part of the FY2018 cap will be assessed and resumed as workload permits. USCIS has indicated that it will release future announcements when premium processing will resume for these additional types of H-1B petitions. Earlier this summer, USCIS resumed premium processing for Conrad 30 and IGA waiver H-1B cases, as well as H-1B petitions filed by H-1B cap exempt employers.

As outlined previously, the suspension of premium processing does not affect other types of nonimmigrant work visa and immigrant visa petitions, including:

  • Form I-129: E-1, E-2, H-2B, H-3, L-1A, L-1B, Blanket L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-Canada, TN-Mexico
  • Form I-140: EB-1 extraordinary ability, EB-1 outstanding professors and researchers, EB-2 advanced degree professionals (not national interest waiver), EB-3 professionals, EB-3 skilled workers, EB-3 other workers

Criteria for Expedited Processing

In the September 18 announcement, USCIS reiterated that while premium processing remains suspended for certain types of H-1B cases, USCIS will allow expedited processing of an H-1B petition under standard expedite request criteria. USCIS may expedite adjudications if the petitioner is able to demonstrate they meet one of the following criteria:

  • Severe financial loss to company or person
  • Emergency situation
  • Humanitarian reasons
  • Nonprofit 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
  • Compelling interest of USCIS

Adjudications for these requests are at the discretion of the reviewing officer and will be made on a case-by-case basis. USCIS has encouraged petitioners who pursue this option to submit documentary evidence with their request.

Further updates are expected as USCIS starts to bring back premium processing for other types of H-1B cases.

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