Fast-Track Option for High-Skill Visas Delayed Until September (1)

Employers probably won’t be able to get their petitions for high-skill visas fast-tracked until very close to the date they need the workers involved.

Premium processing for H-1B visas that are subject to annual limits likely won’t be available until Sept. 10 this year, U.S. Citizenship and Immigration Services announced March 20. Employers can send petitions for fiscal year 2019 visas on April 2. FY 2019 begins Oct.1.

Premium processing allows employers to pay an extra fee for their petitions to be processed within 15 days.

Immigration attorneys were “blindsided” by the announcement, Jennifer Minear of McCandlish Holton in Richmond, Va., told Bloomberg Law March 21.

“They’ve been telling us since January” that there would only be a brief period when premium processing would be suspended, Robert Cohen of Porter Wright Morris & Arthur in Columbus, Ohio, said March 21. But “last night the switch flipped,” he told Bloomberg Law.

The move “will help us to reduce overall H-1B processing times,” USCIS spokeswoman Joanne Talbot said in a March 21 email to Bloomberg Law. It will allow the agency time to process “long-pending petitions” and to prioritize petitions to extend someone’s H-1B, she said.

Some Suspension Typical

There are 85,000 H-1B visas available each fiscal year, and for the past several years employers have sought significantly more. Last year, USCIS received 199,000 H-1B petitions, a slight drop from 236,000 the year before.

Because of the sheer volume of petitions, it’s typical for USCIS to suspend premium processing for cap-subject H-1Bs for a period after employers first can apply for the visas. But the agency normally makes premium processing available again within about six weeks.

Employers are expected to seek a high number of the visas again this year. The count could rise as employers use H-1Bs as a fallback for other immigration categories that the Trump administration has gotten rid of or could eliminate, such as temporary protected status, TN visas for professionals from Canada and Mexico, and work permits for spouses of H-1B workers in the green card backlog.

Last year, USCIS suspended premium processing for all H-1B visas, including those that aren’t subject to the annual cap. Petitions from nonprofits and institutions of higher education are exempt from the cap, as are petitions seeking to extend a worker’s H-1B.

‘Safety Valve’

The agency said the move was to address a backlog of H-1B petitions, particularly those seeking visa extensions that weren’t meeting deadlines. But some immigration attorneys and lawmakers suspected that the administration was intentionally trying to cut back on the visas by slow-walking decisions on the applications.

It made sense last year that USCIS needed a “safety valve” to address processing times that “were spiraling out of control,” said Cohen, who heads AILA’s USCIS Benefits Liaison Committee. But the timing of this year’s announcement is suspicious, he said.

Many H-1B seekers are on student visas with what’s called “cap-gap” relief: the ability to stay and work in the U.S. after expiration of their student visas, but only through Sept. 30.

“In September there’s always a lot of concern for those cases that have not yet been adjudicated,” Cohen said. It can’t be “simply coincidence” that USCIS chose September to restart premium processing, he said.

Petitions Must Be Redone

This year’s announcement also came with a twist: USCIS’s refusal to accept premium processing requests filed before the suspension is lifted. USCIS also said it would reject both the premium processing request and the H-1B petition if there’s a single check covering both fees.

In the past, employers could request premium processing when they sent in their H-1B petitions, but the 15-day clock just wouldn’t start until premium processing resumed, Minear said.

Most employers already have their H-1B petitions “packaged and ready to go” on April 2, she said. “Now a lot of those cases are going to have to be reworked” by taking out premium processing forms and recutting checks, she said.

And by suspending premium processing to address backlogs, another backlog is going to be created when the “mad rush” for premium processing begins in September, Minear said. “It’s going to be a mess,” she said.