H1B Suspension of Premium Processing Clarified

As previously explained, the U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended premium processing for certain H1B petitions, from May 26 through July 26, 2015. In announcing the suspension of this service, the USCIS noted that this would only apply to cases “…requesting an extension of the stay for an H1B nonimmigrant.” While this may seem straightforward, it still has caused some confusion among stakeholders regarding which cases may continue to take advantage of the premium processing service.

Extensions of Status: No Premium Processing

The premium processing suspension only applies if the H1B petition includes a request for an extension of H1B status. This means that the beneficiary must already be in H1B status at the time of filing. This suspension of the premium processing service applies if the petition is being filed by the beneficiary’s existing employer or a new employer requesting that the individual’s H1B status continue within the U.S. This is known as an extension of status request. Thus, even prior to July 26th, employers can utilize premium processing for some H1B cases, including amendments, if the amended petition does not also include an extension of status request.

Consular Notification: Should be Able to Enjoy Premium Processing

The premium processing suspension does not apply to H1B petitions that request what is known as consular notification. This type of petition is filed requesting that a U.S. consulate abroad be notified, typically so that the beneficiary may then go the consulate and apply for a visa foil (i.e. stamp). Such a petition does not request that the individual’s status, reflected by form I-94, be extended from within the United States. Rather, the I-94 is issued at the port of entry to reflect admission in H1B status.

Premium Processing Still Available for Changes of Status

As mentioned above, the suspension of premium processing only applies cases filed for individuals who are currently holding H1B status. Thus, if an individual holds a status other than H1B, and the employer is requesting a change of status to H1B, premium processing is still available. This option applies even if the change of status request will result in extending the individual’s period of non-immigrant status. And, of course, other categories that typically allow for premium processing, such as L-1 and O-1, are not impacted by this H1B premium processing suspension.

Conclusion and Recommendations

With the limited availability of premium processing for H1B petitions, standard immigration plans and strategies may need to be modified. Many typical safeguards for making changes in employment rely, at least in part, on the use of premium processing. It is now necessary to consider the limited situations in which premium processing remains available for H1B petitions and, potentially, incorporate the available options in immigration planning.

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