Suspension of H-1B Premium Processing Service Will Hurt Employers and USCIS

by Dinh Tran, Partner, Queen City Immigration Law. (704) 741-9002

On Friday, March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing for all H-1B petitions starting on April 3, 2017 and lasting up to six months. Since April 3 is the first day that cap-subject H-1B petitions for the fiscal year 2018 will be accepted, this suspension will apply to all petitions filed for the 2018 Fiscal Year H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

Presently, USCIS offers employers the option to pay an additional fee for a premium processing service when filing H-1B petitions. Currently, this fee is set at $1,225 and is also applicable to some other employment-based petitions, such as petitions for L-1, E, and permanent residence. Petitioners that elect the premium processing service can expect an action on their petitions within 15 calendar days after receipt by USCIS. The resulting action can either be approval, denial, or request for further evidence. This ensures that H-1B employers that require prompt adjudication can know the result within a short few weeks instead of months in most cases.

USCIS explained in its announcement that the reason for the suspension is to reduce overall processing times for H-1B petitions. Specifically, this measure is intended to allow the Service to "process long-pending petitions, which it has currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and to prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark."

However, the suspension has the potential to hurt H-1B petitioning employers overall, not to mention USCIS as well. Without the premium processing service, all employers which file H-1B petitions for the FY18 cap season and have their petitions selected in the random drawing will have their petitions adjudicated in a random order. Some of the employers which require certainty and a fast decision might not receive the result for several months. And should for some reason their petition be denied after several long months of waiting, those employers might not have enough time to find a replacement hire or implement a backup plan before October 1 - the beginning of the 2018 fiscal year when new H-1B visa numbers become available. On the other hand, other employers which do not have pressing needs and strict deadlines might have their petitions adjudicated very quickly, in just a month or two.

This will result in an inefficiency and a waste of a scarce resource - USCIS adjudicators' time. Additionally, by not offering the premium processing service, USCIS will lose a significant amount of revenue that is used to cover some of its operating costs. Even with the premium processing available in previous years, the USCIS was not been self-sufficient and had to raise the filing fees for most types of petitions and applications it adjudicates just over two months ago. By eliminating the stream of premium processing fee revenue, USCIS will become even more dependent on the taxpayers' money for its operations.