Seyfarth Synopsis: On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.

USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.  Over the last few months, the agency incrementally reinstated premium processing service for lower-volume filings including certain H-1B petitions that are not subject to the H-1B cap as well as H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program.  On September 18, 2017, the agency reinstated and will immediately accept premium processing requests for pending H-1B petitions that were filed under the Fiscal Year 2018 cap.  This includes H-1B petitions filed under the annual quota of 20,000 U.S. Master’s degree petitions as well as those filed under the general H-1B cap of 65,000 petitions.  Unfortunately, premium processing service remains suspended for H-1B petitions that are filed to extend an employee’s status or change employers.

When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.  This additional filing fee requires USCIS to adjudicate the petition within 15 days of receiving the request.  Petitions are either approved or a Request for Evidence (RFE) is issued by USCIS within that 15-day time period.  Premium processing requests can be filed with the initial filing of a petition, or at a later date by referencing the petition’s receipt number.  Since the quota of H-1B cap petitions has already been reached, this service is only available to currently pending H-1B cap cases for FY 2018. 

With the reinstatement of this service, Employers should carefully review their pending H-1B cap lists and strongly consider submitting a premium processing request for any pending FY 2018 cap cases in which the beneficiary has an expired F-1 Optional Practical Training (OPT) employment authorization card and is relying on “Cap Gap” for work authorization through September 30, 2017.  Any beneficiary relying on “Cap Gap” whose H-1B petition is still pending on October 1, 2017 will lose employment authorization until his or her H-1B petition is approved.  Employers should also consider prioritizing premium processing requests for employees in a different status who are facing imminent expirations of work authorization as well as those with upcoming international travel plans that require an H-1B visa stamp for reentry.

Summary

Premium processing of FY 2018 cap H-1B petitions has resumed.  Your contacts at Seyfarth Shaw LLP will continue to monitor USCIS announcements with regard to reinstatement of premium processing for other types of H-1B petitions.