Premium Processing for H-1B Extensions to Be Suspended Until July 27

USCIS is suspending premium processing for H-1B extensions from May 26 through July 27 in order to devote resources to the upcoming H-4 employment authorization program. The suspension is likely to have a significant negative impact on employers, H-1B foreign nationals and their H-4 dependents.

The Scope of the Suspension

During the suspension period, premium processing will not be available for H-1B petitions requesting an extension of the beneficiary’s stay.

USCIS has clarified that premium service will remain available for H-1B cap cases, cap-exempt cases requesting a change of status or consular notification, and petitions for other nonimmigrant classifications filed on Form I-129, such as L-1 and O-1 cases.

Likewise, premium service will be available for non-cap H-1B petitions requesting a consular notification or an amendment of a previously approved petition that does not include a request for an extension of stay. USCIS did not specifically address petitions seeking a change of employer, and it is not clear whether the agency will grant a premium service for such a case where filed without an extension request. As a reminder, foreign nationals in H-1B status are permitted to begin work with a new H-1B employer as soon as the new employer’s petition is properly submitted to USCIS; they are not required to wait for agency approval before starting their new H-1B job.

Impact on H-1B Extensions Filed Before May 26

USCIS states that it will honor premium processing requests filed with H-1B extensions before May 26, but leaves open the possibility that some such cases may not be processed within the 15-day timeframe.

Employers and foreign nationals should prepare for the possibility that a premium processed extension filed before May 26 could be delayed. If this occurs, USCIS would return the premium fee. It is not yet known whether USCIS will give priority to these cases once the suspension is lifted.

Impact on Travel

The suspension may have a severe impact on many H-1B employees planning international travel this summer. Though H-1Bs with a valid visa and valid I-94 can travel and reenter while their extension application is pending, those whose I-94 has expired will be unable to return to the United States until their petition is approved. In instances where travel is necessary, employers have the option of filing via premium processing so long as a request for consular notification, as opposed to extension of stay, is made.

Impact on Driver’s License Renewals

The suspension will have a significant impact on foreign nationals whose H-1B status and state-issued driver’s license will expire before July 27. Though some states will accept a receipt notice establishing the timely filing of an H-1B extension as evidence of lawful status for driver’s license renewal, many will not. Affected H-1Bs may be unable to drive lawfully after their current I-94 expires.

Impact on H-4 EAD Applications

The stated goal of the premium suspension is to allow USCIS to adjudicate H-4 employment authorization applications, which the agency began to accept on May 26. However, the suspension could delay EADs for H-4s who need their H-1B spouse’s extension of stay to obtain an EAD. An H-4 can establish eligibility for an EAD if their H-1B spouse obtains an extension of stay beyond their six-year maximum based on a long-pending labor certification or Form I-140 petition. If the spouse’s extension cannot be premium processed, the H-4 will have to wait longer for employment authorization.

What This Means for Employers and Foreign Nationals

Though USCIS indicates that it could lift the suspension of H-1B extension premium processing before July 27, employers and affected foreign nationals should plan for restrictions in their ability to travel abroad and renew a U.S. driver’s license. USCIS will entertain requests to expedite an extension if the petitioner or beneficiary can show significant hardship, but such requests are only approved on a case-by-case basis at the discretion of the agency.

Reprinted with permission of Fragomen, Del Rey, Bernsen & Loewy, LLP.

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