Temporary Suspension of Premium Processing

The U.S. Citizenship and Immigration Services (USCIS) announced that the filing fee for premium processing will increase from $1,225 to $1,410, beginning on October 1, 2018.  According to USCIS, this 15% increase in price is in step with inflation since DHS last adjusted premium processing rates in 2010 and will allow USCIS to more effectively adjudicate petitions and maintain service to petitioners.  The new rule was published in the Federal Register on August 31, 2018.

Premium processing is an optional expediting service that is currently authorized for certain employment-based petitioners filing Forms I-129 or I-140.  The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.  Under premium processing, USCIS has 15 days to process these specific types of employment-based immigration benefit requests.  Without premium processing, adjudication can take upwards of 4 months.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits.  Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore.  “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is available for certain employment based nonimmigrant visas, including H-1Bs, L-1s, O-1s and Ps, as well as some employment base permanent residency categories.  Earlier this year, USCIS suspended premium processing for all H-1B petitions subject to the annual quota on H-1 visas (i.e. “cap cases”).  This suspension was initially slated to end on September 10, 2018, but USCIS has now pushed that date back to February 19, 2019.  Additionally, USCIS also announced that, as of September 11, 2018, it will expand the suspension to include H-1B petitions seeking to amend existing H-1B status, to request a change of employer, or to change status.  Only H-1B petitions seeking an extension of status (with no change in circumstances or employer) or H-1B petitions filed under the H-1B Cap Exemption will be able to file under premium processing beginning September 10, 2018.  In the absence of premium processing, USCIS may take four to six months (or longer) to complete the processing of an H-1B petition.

Employers and employees alike will have to take into consideration the impact of processing times and increased fees when planning to file nonimmigrant and immigrant visa petitions.  The unavailability of premium processing can impact the timing of employment and prolong restrictions on international travel.

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Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  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.

If Congress should fail to pass a FY2016 budget or Continuing Resolution before October 1, 2015, the government, including the Department of Labor will shut down (again; previously occurred in October 2013). This will directly affect the Department of Labor’s Office of Foreign Labor Certification (OFLC) since its functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will not accept applications or related materials (such as audit responses) as of October 1, nor will it process those already received, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification (H-2A/H-2B), or Applications for Permanent Employment Certification. Furthermore, DOL’s online systems (iCERT and PERM) will not be operational and will not accept PERM, LCA, or prevailing wage applications, and authorized users will not be able to access their online accounts.  While DOL made accommodations in 2013 to accept applications that were affected by the shutdown, there is no way to be certain it will do so again.

We, along with you, are hopeful that Congress will take the steps necessary to prevent another government shutdown, but you should be aware that this may directly impact nonimmigrant and visa processing.

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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 Roseland, 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.

The US Citizenship and Immigration Service (USCIS) has updated its May 19, 2015 alert announcing temporary suspension of premium processing for certain H-1B petitions.  http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Here are the highlights:

  • May 26, 2015 – July 27, 2015*:  Premium processing is suspended for all H-1B extension of stay petitions with extremely limited exceptions for cases meeting the narrow expedite criteria.  See USCIS Expedite Criteria webpage.
  • During this suspension period, premium processing will still be honored for:
    • H-1B extension of stay petitions requesting premium processing prior to May 26, 2015 (but be aware that the announcement states:  “USCIS will refund the premium processing fee if:  A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and USCIS did not act on the case within the 15-calendar-day period.”)
    • Change of status H-1B petitions
    • Consular notification H-1B petitions
    • Consular notification H-1B petitions for those who have H-1B status
    • H-1B amendment petitions that do not also request an extension of stay
    • H-1B1 petitions (under the US-Chile and US-Singapore Free-Trade Agreements).

The temporary suspension is intended to enable USCIS to timely implement the Employment Authorization for Certain H-4 Spouses final rule, which became effective on May 26, 2015, and is anticipated to result in “an extremely high volume of Form I-765 applications”.

*USCIS has indicated that it will monitor workloads and if feasible, resume premium processing for H-1B extension petitions prior to July 27, 2015.

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