The end of H-1B premium processing: heightened anxiety and uncertainty for employers and employees

Lynn O'Brien
Lynn O'Brien 10 Sep, 2018

The government’s recent decision to suspend premium processing for H-1B cap petitions until February—effectively spelling the end to expedited service for most H-1B cases for the rest of this year and part of next—is more than a small processing tweak. It will exact a substantial toll on businesses and their employees by removing their ability to control an important tool for business planning: the timeline.

Not only will the current suspension on premium processing continue for H-1B cap petitions filed in April, but beginning Sept. 11, the suspension will be expanded to cover all H-1B cases, with only very limited exceptions. The suspension is expected to last until Feb. 19, 2019, and applies to all new H-1B cap-subject petitions as well as H-1B extensions involving a change of employer, or change of job terms or location with the same employer.

Premium processing is a widely used service that allows employers to pay an extra fee to guarantee a response from USCIS within 15 days. Without premium processing, an open-ended timeline creates instability for businesses and their employees. Employers who are understaffed and need to sponsor foreign nationals to fill those jobs may need to wait eight to 10 months for a decision and can no longer pay an extra service fee (currently $1,225) to ensure faster processing. The fee will increase to $1,410 in October, but for the next five months there will be no amount of money an employer can pay to hold USCIS adjudicators to a reasonable and predictable processing time frame in order to keep hiring on track and get a much-needed H-1B employee to start work.

The elimination of premium processing also creates anxiety and uncertainty for H-1B employees. The policy potentially boxes them into their current employment and inhibits their job mobility and ability to travel. Employees are less likely to switch to a better job before having an H-1B approval in hand and employers are unlikely to be able to wait months and months to hire or change the major duties or worksite of an H-1B employee. Many F-1 students on OPT cap-gap employment authorization will not receive a decision on their H-1B petition by Sept. 30, will lose work authorization on that date and will need to stop working until their petition is approved. Workers already in H-1B status who have filed for an H-1B extension may continue to work for the same employer on the basis of the petition, but only for 240 days, and they should not travel abroad while their extension petition is pending, potentially interfering with business and holiday travel.

It is hoped that the government’s stated reasons for the suspension of premium processing—to reduce backlogs and prioritize long-pending cases—prove true. In the meantime, employers and employees will need to work closely with their immigration advisors and plan carefully during this period of uncertainty to minimize disruption to business and to their employees’ careers.

The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.