USCIS Extends and Expands H-1B Premium Processing Suspension Through February 2019

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At a glance

• Premium processing for FY 2019 H-1B cap petitions is further suspended until February 19, 2019.
• Employers have through September 10, 2018 to file premium processing requests for a change of H-1B employer, an amendment or a non-cap subject change of status to H-1B. Premium service will be suspended for these case types from September 11, 2018 through February 19, 2019.
• Premium processing remains available for extensions of H-1B status with the same employer without changes in circumstances, as well as other non-H-1B case types ordinarily eligible for premium service.

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The situation

USCIS has decided to extend and expand the suspension of premium processing for certain H-1B cases.  The suspension affects pending FY 2019 H-1B cap cases and, effective September 11, 2018, most H-1B changes of employer, changes of status and amendments. Both the extension and expansion are expected to remain in effect until February 19, 2019.

On April 2, 2018, USCIS suspended premium processing for FY 2019 H-1B cap cases. The suspension was originally expected to last until September 10, 2018. USCIS says that the broadened and extended suspension will allow the agency to address a backlog of long-pending cases, and to give priority to pending H-1B extensions with the same employer that are nearing the end of the 240-day automatic extension of work authorization.

Impact on FY 2019 H-1B cap cases

Employers will not be able to request premium processing service for pending FY 2019 H-1B cap cases until an anticipated date of February 19, 2019.

The extended suspension of premium processing may delay a foreign national’s ability to travel internationally before his or her H-1B cap petition is approved. Travel while a change of status H-1B request is pending will cause the status request to be deemed abandoned, though the underlying H-1B petition remains approvable. A foreign national who travels abroad before the change of status is approved would have to take extra steps to assume H-1B status after the case is approved, potentially delaying the foreign national’s return to the U.S.

The suspension will also affect F-1 students in the cap-gap period. Employment authorization for qualified cap-gap beneficiaries expires on October 1, even if the beneficiary’s H-1B cap case remains pending after that date.

Impact on H-1B changes of employer, changes of status and amendments

USCIS will continue to accept premium processing requests for H-1B changes of employer, non-cap subject changes of status and amendments through September 10, 2018. If your organization intends to sponsor an H-1B nonimmigrant for one of these case types, a request for premium processing must be received at USCIS by September 10, 2018.

Premium processing for other case types

USCIS will continue to accept premium processing requests for the following case types:

• Extensions of H-1B status with the same employer and no change in circumstances, filed at the USCIS Nebraska Service Center.
• H-1B petitions filed by a qualifying cap-exempt employer or for beneficiaries who will be employed at a qualifying cap-exempt organization. This includes institutions of higher education and their related or affiliated nonprofit organizations, nonprofit research organizations and governmental research organizations.
• Other case types eligible for premium processing, including L-1, O-1 and I-140 petitions.​

Expediting cases in urgent situations

In urgent situations, employers can request faster processing if a case meets USCIS’s longstanding expedite criteria, but employers must be aware that expedites are only granted at USCIS’s discretion and are issued very rarely -- for emergencies, humanitarian situations, in cases of severe financial loss to the employer or foreign national, and a few other very limited circumstances.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.