Fewer Limits on Fast-Track Skilled Visa Processing This Year (1)

March 7, 2018, 7:12 PM; Updated: March 7, 2018, 9:01 PM

Employers seeking high-skill guestworker visas likely will have to wait to be able to get their petitions fast-tracked this year, but that’s not out of the ordinary.

U.S. Citizenship and Immigration Services will announce when “premium processing” will become available for employers whose petitions are subject to the annual cap on H-1B visas, the agency said during a March 6 public teleconference.

But unlike last year, the agency won’t suspend premium processing for all H-1B petitions, USCIS spokeswoman Joanne Talbot told Bloomberg Law March 7.

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

A good number of employers pursue premium processing, Andrew Greenfield of Fragomen, Del Rey, Bernsen & Loewy in Washington told Bloomberg Law March 7. That includes about half of Greenfield’s clients.

But not everyone seeks premium processing right away, he said. There’s no restriction on when in the H-1B process an employer can ask for premium processing, so some employers wait until they need to speed things up, Greenfield said.

Similar to Prior Years

It’s common practice for USCIS to temporarily suspend the availability of premium processing to complete the intake and lottery process for the visas. For the past several years, employers have submitted around 200,000 H-1B petitions despite only 85,000 visas being available each year.

In 2016, for example, premium processing started May 12, a little more than a month after employers were first allowed to send their petitions to USCIS.

In 2017, the agency took the more unusual step of suspending premium processing for all H-1B petitions, and for an indefinite period of time. USCIS said it needed to do so to have the capacity to clear a backlog of H-1B petitions, especially pending petitions to extend the status of foreign workers who already were granted H-1Bs.

The fast-track option was phased back in over the next few months, becoming available again Oct. 3 for all H-1B petitions.

H-1B petitions filed by institutions of higher education, their affiliated or related nonprofits or nonprofit research organizations, and government research organizations aren’t subject to the annual cap and should be able to seek premium processing as normal this year.

Influences Speed, Not Outcome

Premium processing doesn’t increase the likelihood that an H-1B petition will get selected in the lottery or that it will get approved, Greenfield said.

But the “one potential advantage” is that employers that file for premium processing right off the bat usually hear first whether their petitions were selected in the lottery, he said. “If they can know that information a month earlier,” it allows for more time to come up with plan B if the petition isn’t selected, he said.

Premium processing also can speed up the process if an employer receives a request for evidence, a more likely occurrence following last year’s spike in RFEs.

With premium processing, USCIS has 15 days to approve the petition or send an RFE, Greenfield said, adding that it’s “quite rare” for a petition to be denied without an RFE being sent first. An employer will be given anywhere between a few weeks to a few months to respond, and then USCIS has another 15 days to make a final decision, or refund the employer’s premium processing fee, he said.

(Updated to include additional comments.)

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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