U.S. Immigration to Suspend Premium Processing for All H-1B Petitions

By Stephen Blaker and Howard Shapiro

U.S. Citizenship and Immigration Services (USCIS) announced that as of Monday, April 3, 2017, it will not accept Premium Processing requests for H-1B visa petitions for a temporary period expected to last up to six (6) months. This applies to all H-1B visa petitions, including extensions, amendments, cap-exempt and new employment petitions, such as those to be submitted in the FY18 Bachelor’s and Master’s Caps. USCIS has indicated that the suspension is required to eliminate the backlog on long-pending H-1B visa petitions. Starting on April 3, 2017, USCIS will reject any H-1B visa petition that is filed with a Form I-907 and one (1) combined check for the I-129 filing fees and the I-907 filing fee.

The suspension does not affect any other petitions filed on Form I-129 such as L-1, O-1, E-2, E-3 and TN petitions. This suspension also does not affect petitions filed on Form I-140, which remain eligible for Premium Processing in certain categories.

For students in F-1 status who will be beneficiaries of H-1B Cap “change of status” visa petitions, the “Cap Gap” period will automatically begin once a Receipt Number is issued to the H-1B Cap visa petition filed on the student’s behalf. This “Cap Gap” status extends an F-1 student’s status and OPT employment authorization through October 1, 2017 while an H-1B petition is pending. Students in F-1 status whose case is assigned a Receipt Number may obtain an updated Form I-20 from their school’s Designated School Official (DSO) to evidence their “Cap Gap” status. Without the Premium Processing, an F-1 student may be unsure if the H-1B petition filed on his or her behalf has been selected and should contact his/her university’s foreign student office to discuss “Cap Gap” eligibility.

H-1B extension petitions can be filed no earlier than six (6) months prior to the beneficiary’s current authorized stay. Note that foreign nationals in H-1B status may continue to work in H-1B status for up to 240 days if the foreign national’s employer files an H-1B extension petition prior to the foreign national’s I-94 expiration. During this 240-day automatic extension period, international travel is not permitted. Similarly, beneficiaries of H-1B Change of Employer petitions may begin to work at their new employer upon the filing of the H-1B Change of Employer petition, though we recommend not commencing work at the new employer until the H-1B Change of Employer petition is assigned a Receipt Number.

Please note that this suspension is subject to modification by USCIS. MSK’s immigration department continues to monitor all immigration-related developments and will continue to provide updates as they are announced.

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