Orgs Ask USCIS To End H-1B Premium Processing Pause

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Law360 (September 25, 2018, 8:40 PM EDT) -- The American Immigration Lawyers Association and the Association of International Educators penned a letter asking U.S. Citizenship and Immigration Services to lift its suspension of premium processing for H-1B skilled worker visas in the cases of students seeking to adjust their status, arguing that if the agency does not process their petitions soon, their underlying status may expire.

The Sept. 21 letter alternatively suggests that the agency could publish a notice to extend the student visa holders’ work authorization for at least 90 days or until all of the H-1B cases subject to a statutory cap have been adjudicated. The organizations argue that employers had planned that H-1B cap cases would be finalized by Sept. 30 so that workers could start in their jobs Oct. 1 and that the premium processing suspension has disrupted those plans.

“This issue is of particular concern as U.S. businesses will be forced to suspend the employment of these individuals indefinitely, if their petitions are not adjudicated by September 30, 2018,” the letter states. “The suspension of premium processing has a negative impact on thousands of U.S. businesses, disrupting their ability to plan and deliver on projects and contractual commitments, and ultimately to compete in a highly-competitive global economy.”

The H-1B program, which allows skilled foreign workers to work in specialty occupations, is popular with information technology and tech companies. The number of new visas granted through the program is capped at 65,000 a year, with extra visa slots allotted for those with master's degrees or higher. Demand has outstripped supply, however, forcing USCIS to conduct an annual lottery to allocate the visas.

Surging in popularity over the last few years, premium processing allows petitioners to pay an additional fee so their applications may be processed faster or else receive a refund.

The agency first suspended the service in April for petitions subject to the annual cap to clear its backlog and announced on Aug. 28 that it will continue to be paused until February. The agency also expanded the suspension to apply to petitions from current H-1B holders seeking to switch jobs beginning Sept. 11.

The agency claimed that the suspension was necessary for it to “e responsive to petitions with time-sensitive start dates; and [p]rioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.”

Certain students on expiring F-1 visas can receive what is called a “cap gap extension” providing temporary employment authorization in a specialty occupation, often while they apply to adjust their status to an H-1B. But even that extension may not be enough to cover the waiting times for H-1B adjudications, the letter states.

The letter acknowledges that USCIS has before suspended premium processing depending on its backlog, but never has the suspension carried on for more than a few weeks. The long wait times have left employers with few options, the organizations said.

“Without the option of premium processing, U.S. employers seeking to extend the employment of a cap-gap beneficiary through the filing of an H-1B petition have no reliable means to mitigate the very real risk that they will be forced to suspend the beneficiary’s employment,” they said.

USCIS and the advocacy organizations were not available for comment Tuesday.

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