As of April 1, 2019, U.S. employers requesting a change of status for H-1B hopefuls should request Premium Processing by concurrently filing visa petitions with Form I-907, Request for Premium Processing Service, available here. But don’t expect the Federal Immigration Service to begin working immediately. In a statement released on March 19, 2019, the U.S. Citizenship and Immigration Services (“USCIS”) announced that “Premium Processing” – a 15-day expedited service available in exchange for a $1,410 filing fee – will not immediately begin for H-1B cap cases this fiscal year. While USCIS plans to formally notify the public when Premium Processing begins for lottery (“cap-subject”) H-1B visa petitions, employers should expect Premium Processing to commence for H-1B cases requesting a change of status by no later than May 20, 2019. Employers looking to hire foreign national students who are currently inside the U.S. and maintaining lawful immigration status are expected to benefit most from the Immigration Services’ latest procedural shift.

Employers Take Note: Any employer who, during the first five business days of April 2019, fails to request Premium Processing service at the time of filing a cap-subject H-1B petition seeking a change of status might very well have to wait until May 20 to take advantage of expedited service. According to the Federal Immigration Agency, USCIS will reject any Premium Processing request that is not filed concurrently with an eligible H-1B petition during the specified time period. Employers must appropriately select response “b” for Item 4 in Part 2 of Form I-129, Petition for a Nonimmigrant Worker, to be eligible to concurrently file Form I-907, Request for Premium Processing Service.

The situation is further complicated for U.S. employers eager to hire H-1B workers who are currently outside of the U.S. In an effort “to prioritize data entry for cap-subject H-1B petitions,” USCIS will postpone Premium Processing for all other FY 2020 cap-subject H-1B petitions until at least June 2019. U.S. employers planning to file a lottery-subject H-1B petition on behalf of any foreign national who is presently outside the United States, or out of lawful-status, will not be eligible to concurrently request Premium Processing service. Instead, these employers are now forced to wait until USCIS announces a confirmed date when Premium Processing will become available for cap-subject H-1B petitions not requesting a change of status.

At this time, Premium Processing remains available for U.S. employers whose H-1B petitions are exempt from the annual randomized lottery-selection process, such as extension of stay requests and other cap-exempt categories.

To avoid adverse consequences under the two-phase Premium Processing policy, employers are encouraged to file H-1B petitions with Premium Processing on April 1 for any H-1B worker who is requesting a change of status to ensure uninterrupted work authorization. For F-1 students who are inside the U.S. and currently employed pursuant to valid Optional Practical Training (OPT), failure to concurrently request Premium Processing on April 1 may result in a lapse in employment authorization if H-1B petitions are not approved by October 1. Under the H-1B “Cap-Gap” extension, F-1 students will be permitted to remain in the United States if their H-1B petition remains pending on October 1, but will have to forego any employment after September 30 until their H-1B status is approved. Employers are also alerted that international travel should be avoided after an H-1B petition is filed for any applicant requesting an initial change of status to H-1B classification. Travel outside of the U.S. after April 1 could give rise to a determination by USCIS that the applicant has abandoned the change of status petition. Travel during this timeframe also revokes Cap-Gap privileges, including legal work status for F-1/OPT students.

Employers are advised to contact an immigration attorney regarding any H-1B applicant who may be impacted by anticipated processing delays or may experience difficulty with driver’s license renewals or international travel.

Akerman continues to monitor this situation and will keep clients informed of immigration developments as they occur.