On March 3, The U.S. Citizenship and Immigration Service (USCIS) announced that it will temporarily suspend premium processing for all H-1B petitions starting on April 3, 2017 until further notice. This suspension is anticipated to last for a period of up to 6 months. During this suspension, Petitioners are unable to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. USCIS has indicated that it will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, which is the date FY18 cap-subject H-1B petition filings begin.  Therefore, the suspension applies to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”) as well as to petitions that may be cap-exempt.

While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition. If the one combined check for both the Form I-907 and Form I-129 H-1B fees is included, both forms (i.e. the entire filing) will be rejected.

USCIS will continue to premium process H-1B petitions properly filed before April 3, 2017, however, USCIS will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.  It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request. USCIS will review all expedite requests on a case-by-case basis and requests will be granted at the discretion of USCIS leadership.

Why USCIS Is Temporarily Suspending Premium Processing for H-1B Petitions

According to USCIS, the temporary suspension will help it reduce overall H-1B processing times by enabling it 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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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

As anticipated, the number of cap-subject H-1B petitions filed by U.S. employers exceeded the 65,000 general cap and the 20,000 master’s degree exemption for fiscal year 2017 (FY2017).

Yesterday, April 7, 2016, U.S. Citizenship and Immigration Services (USCIS or the Immigration Service) announced that the FY 2017 H-1B cap had been reached and that it had also received more than 20,000 petitions under the master’s or higher degree exemption.

At this point the Immigration Service will turn its attention to initial intake on the H-1B petitions that it received before the cap was reached.  Due to the high volume of petitions received, USCIS stated that it cannot yet say when it will implement use of its computer-generated H-1B Lottery process to determine which petitions will be processed.

As in prior years, petitions filed under the advanced degree exemption will be selected first.  Thereafter, presuming that there are in excess of 20,000 advanced degree petitions, the remaining advanced degree petitions will be added into the 65,000 general cap for consideration.

Petitions that are not selected and are not duplicate filings will be rejected and returned (with unused filing fees) to the petitioner.

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Catherine Wadhwani is a partner in Fox Rothschild LLP’s Immigration Practice Group.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

As you likely know, April 1st was the first day when cap-subject H-1B petitions could be accepted for Fiscal Year 2017.  Now that the filings have started, here is a quick summary of some key information provided by the U.S. Citizenship and Immigration Services (USCIS or Immigration Services) in a March 16, 2016 release captioned, “USCIS Will Accept H-1B Petitions for Fiscal Year 2017 Beginning April 1, 2016”:

  • The congressionally mandated H-1B cap remains at 65,000 for FY 2017 along with the cap exemption for the first 20,000 petitions received for those with a U.S. master’s degree or higher (the latter being commonly referred to as the “Master’s Cap”).
  • It is again expected that USCIS will receive more than 65,000 petitions during the first 5 business days of April 2016.
  • USCIS will monitor the number of petitions received and let public know when the H-1B cap has been reached.
  • The H-1B Lottery system (computer-generated lottery system to randomly select the number of petitions required to meet the cap) will again be used if as expected, during the first 5 business days of April, USCIS receives more cap-subject H-1B petitions than there are numbers available.
  • If your petition isn’t selected in the Lottery or is received after the cap is closed, USCIS will reject it.
  • An H-1B petition is “accepted” only on the date when USCIS receives a properly filed petition with the appropriate fees.
  • Premium (15-day) Processing of cap-subject H-1B petitions is expected to be delayed, but begin no later than May 16, 2016.  This is to allow personnel time to enter data on the massive number of petitions that are expected during the first 5 business days of April.
  • USCIS provided special instruction for employers whose H-1B workers will work in different locations as follows:  “H-1B petitioners are reminded that when the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where in the United States the various worksites are located. Please ensure that when temporary employment or training will be in different locations, the address on page 1, part 1 of Form I-129 is for your organization’s primary office. Please note that when listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.”

Let the data entry begin…

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  Catherine is situated in Fox Rothschild’s Pittsburgh, Pennsylvania office though she practices throughout the United States and at Consulates worldwide.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

Last year at about this time, I published a blog post captioned, “FY 2015 H-1B Cap:  What are the Odds?” (http://immigrationview.foxrothschild.com/h-1b-temporary-workers/fy-2015-h-1b-cap-what-are-the-odds/).  According to my very basic calculations, I estimated that the odds of receiving one of the limited FY 2015 H-1B numbers was about 43% under the regular cap, with slightly better chances for those with a Master’s or higher degree.  Overall, if you didn’t deducted the 20,000 advanced degree petitions from the total, chances were about 50/50.

For FY 2016, the odds are worse.  This of course is due to an increased demand on the part of US employers.  Indeed, the US Citizenship and Immigration Service (USCIS) announced that it received “nearly 233,000 H-1B petitions” toward the FY 2016 cap.  That is 60,500 more than last year, and more than enough to fill an entire year’s regular (non-advanced degree) cap if you deduct the numbers set aside for Chile and Singapore.

Simple math shows that the overall odds of receiving a number in the FY 2016 H-1B cap are about 34%.  If you deduct the 20,000 advanced degree “winners” from the total 233,000 petitions, and re-calculate, the odds decrease to 27% for the remaining petitions which include both the unselected advanced degree petitions and the regular cap petitions.

USCIS completed its computer-generated random selection process (i.e., lottery) on April 13th.  The I-797 receipt notices are beginning to arrive.  Petitioning employers and potential H-1B workers anxiously await news of their fate.  That may sound dramatic, but the reality is that of the approximately 233,000 H-1B cap-subject petitions filed for FY 2016, about 154,800 petitions will be rejected and returned.  This is dramatic for the H-1B petitioning employers and prospective employees who are not winners in the lottery even though they presumably filed meritorious petitions.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.