On Tuesday, August 28, 2018, U.S. Citizenship and Immigration Services (CIS) announced that the suspension of premium processing for H-1B cap petitions would be extended from the original date of September 11, 2018, through the estimated date of February 19, 2019.  Additionally, the CIS has announced that, beginning September 11, 2018, the suspension of premium processing will be expanded to cover additional types of H-1B petitions.

The suspension of premium processing announced earlier this year beginning on April 2, 2018, applied only to cap-subject H-1B petitions and was anticipated to last until September 10, 2018, but this expansion beginning on September 11, 2018 includes a suspension of premium processing for H-1B Change of Employer Petitions and H-1B Amendment Petitions.

Who is Impacted?

From September 11, 2018, to February 19, 2019, premium processing is anticipated to:

1. Continue to be suspended for cap-subject H-1B petitions filed in April 2018;
2. Beginning on September 11, 2018, also be suspended for:

• H-1B petitions seeking a change of employer for H-1B visa holders who have already been counted against the cap; and,
• H-1B amendment petitions due to a material change in the terms and conditions of employment or the employee’s eligibility.

Premium processing is not suspended and remains available for:

1. H-1B petitions filed by cap-exempt employers or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization;
2. H-1B extension petitions with the same employer with no change in employment such as in the job description or terms and conditions of employment; and,
3. H-1B change of employer or amendment petitions, other than cap-subject H-1B petitions filed in April 2018, if filed with premium processing and received by CIS before September 11, 2018.

Impact on Foreign Nationals Relying on F-1 OPT Cap-Gap

Commonly referred to as “cap-gap”, CIS regulations provide for the continuation of work authorization for F-1 students who hold F-1 Optional Practical training work authorization that expires between the filing of the H-1B cap petition in April and the beginning of the next Fiscal Year on October 1st.  Cap-gap coverage generally allows for employers of F-1 OPT professionals with a pending H-1B petition to continue working between the expiration of the Employment Authorization Document (EAD) issued based on F-1 OPT through September 30 with the approval of the H-1B petition for employment beginning on October 1.

In these circumstances if CIS does not approve the H-1B petition for a professional relying on cap-gap employment authorization before October 1, 2018, the professional should cease work at the end of the day on September 30, 2018, until such time as the H-1B petition granting a change of status is approved.

Limited Window to File H-1B Change of Employer and Amendment Petitions with Premium Processing

Premium processing will continue for H-1B Change of Employer and H-1B Amendment Petitions for petitions filed with the Form I-907 and $1225 government fee that are received by CIS before September 11, 2018.  Employers may wish to upgrade pending H-1B petitions to premium processing now or consider filing such H-1B petitions with premium processing by Friday, September 7, 2018, at the latest for receipt by CIS by Monday, September 10, 2018. This limited window does not apply to cap-subject petitions, for which premium processing is expected by CIS to be suspended through February 19, 2019.

CIS currently estimates standard processing times of 5.5 to 7.5 months for H-1B petitions filed with the California Service Center and 3 to 5 months for H-1B petitions filed with the Vermont Service Center, but these estimates are not binding and often are exceeded.

Contact your Foster Immigration Attorney now to initiate H-1B Change of Employer or Amendment Petitions on an expedited basis for filing with premium processing or to upgrade pending non-cap H-1B petitions to premium processing for filing no later than Friday, September 7, 2018. Premium processing requests must be received by CIS no later than Monday, September 10, 2018. If received by CIS on September 11, the premium processing request will be rejected.

CIS Discretionary Expedited Processing

Despite the suspension of premium processing, employers may request expedited processing if they can provide supporting documentation that meets one or more of the following CIS Expedite Criteria:

1. Severe financial loss to company or person
2. Emergency situation
3. Humanitarian reasons
4. Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States
5. Department of Defense or national interest situation
6. USCIS error
7. Compelling interest of USCIS

Approval of the expedite request based on the criteria is discretionary, however, and not guaranteed. Contact your Foster Immigration Attorney to review eligibility for expedited processing.