Premium Processing for H1B Cap Cases
Posted Apr 13, 2007
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The USCIS announced on April 9, 2007, that Premium Processing will be available for cap-subject H1B cases only after certain conditions have been met. Due to the large volume of cases received on April 2nd and 3rd of this year, the USCIS has to select cases by random, computer-generated lottery to fill the Fiscal Year (FY) 2008 cap. Therefore, it has been decided that the 15 days mandated by regulation for the Premium Processing service will begin once the lottery selection has been completed. In an announcement dated April 5, 2007, the USCIS stated that it may take several weeks to sort through the 133,000 pieces of mail it received in the first two business days of April 2007 and to process the cases for the lottery selection.
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Authority to Extend Processing Time for H1B Premium Cases
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Normally, the USCIS would have to return the $1000 per-case surcharge collected for premium processing for any case not reviewed within 15 calendar days. The USCIS, however, has invoked an interim rule, published in the Federal Register on May 23, 2006. This interim rule allows the USCIS to impose conditions on the availability of premium processing, granting it the flexibility when circumstances affect its ability to provide the premium processing service. As its basis for placing certain additional conditions on premium processing, the USCIS points to the volume of mail received in the first two days of April 2007, namely the 133,000 pieces of mail containing one or more H1B petitions.
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Comment - USCIS Not Prepared for Expected Surge in Filings
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We would note that the $1,000 fee for premium processing represents a significant amount of money to most of those who opt for that service. While it is understood that the sheer volume of mail has prevented the USCIS from providing the service as originally promised, this problem was foreseeable. In fact, it was foreseen. In a Q & A session with the USCIS Ombudsman on March 27, 2007, it asked whether extra officers would be assigned to handle the premium processing H1B cap cases. The response was that the California and Vermont Service Centers had a plan to handle the surge of H1Bs.
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It appears that the plan was to accept the fees and only make the restrictions public after the fact. While the USCIS may not have the resources to sort the volume of mail received, they should have announced the conditions and limitations on the availability of premium processing, should filings reach the numbers that were anticipated, prior to the time H1B cap cases were filed. Many selected premium processing so that they potentially could travel between April and October 1, 2007, before starting new H1B jobs, without abandoning requests for change of status, as happens when one departs the U.S. while such a request is pending. These people many not have spent the $1,000 had they known their cases would have no chance of a decision before their planned departure dates.