News

Effective April 3, 2017, USCIS announced that H-1B petitions will not be eligible for premium processing. For an additional $1,225, premium processing is an option offered by USCIS that would allow certain non-immigrant and immigrant petitions to be adjudicated in 15 days, rather than the usual processing times – which is often several months.

This means that all initial H-1B petitions submitted in FY2018’s lottery this April will not be eligible for premium processing. It also means that any H-1B extensions or transfers received after April 3rd will not be eligible for premium processing.

Implications

The removal of the premium processing options will very likely inconvenience employers and employees on both a business and a persona level. If an employee (beneficiary) is in the United States in lawful states at the time an employer files an H-1B petition on his or her behalf, the employee should not depart the country until a decision has been made. Doing so may result in USCIS deeming the petition as abandoned and denying the application. This means that beneficiaries with plans to return home, go on vacation, or travel abroad for business after April 1st, would likely have to postpone these plans until they are approved for an H-1B or notified that they were not selected for the lottery.

F-1 Students and the Cap Gap

If the beneficiary is currently in F-1/OPT status that expires after April 1st, the good news is that the “Cap Gap” will automatically extend their status until their employer’s H-1B petition is approved.

H-1B Transfers

If a beneficiary is currently in H-1B status with Employer A and Employer B offers him/her a job, Employer B can file a petition to “transfer” the H-1B over. The good news is that the beneficiary can immediately start working for Employer B once the petition has been received by USCIS but before a decision has been made.

H-1B Extensions

Beneficiaries who already have H-1B status may have their employer file for an extension of up to 3 years as early as 180 days before the expiration of their status (up to a total of 6 years unless there is an approved Labor Certification or I-140). So long as the request for extension was bona fide and timely submitted, the beneficiary can continue working for the employer in H-1B status up to 240 days after the expiration of his or her H-1B status.

Beneficiaries Outside the United States

If an H-1B petition is submitted after April 3rd and the beneficiary is outside of the United States, the employer will likely have to postpone their starting dates by several months instead of 3-4 weeks.

Alternative Visa Categories

Depending on the beneficiary’s country of citizenship or qualifications, employers should look at alternative visa categories should they requires the employee’s services sooner. These categories may a TN visa for Canadians and Mexicans, H-1B1 visa for Chilean and Singapore citizens, E-3 visa for Australians, E-2 treaty investor or employee visas, E-1 treaty trader visas, L-1 transfer visas, or O-1 visas.