USCIS has just announced that instead of bringing back premium processing for cap-subject H-1Bs on September 10, 2018, they are now extending the suspension all the way until February 19, 2019. In addition, they will stop accepting premium processing for all H-1B transfers and amendments on September 11, 2018 until February 19, 2019. They will also stop accepting premium processing for H-1B extensions “with change” during the same period. This means that only H-1B extensions “without change” that are filed with the Nebraska Service Center may be filed in premium processing. Cap-exempt employers (institutions of higher education, certain nonprofits, and government research organizations) may also continue to file in premium processing.
This is a major blow for international students currently in the “cap-gap” with no H-1B approval by October 1st. The fact that the suspension is in place into February means F-1 students should be extremely careful of the August 9th Unlawful Presence Memo, as the 180-day limit on unlawful presence will be reached on February 4, 2019. If a student is found to have violated F-1 status based on an H-1B decision issued after February 4th, that violation may result in Unlawful Presence being calculated retroactively from August 9, 2018, thus causing the student to be inadmissible for three years.
This is also a major obstacle to H-1B transfers. Although an H-1B worker may begin work with a new employer upon the filing of the transfer, many prefer to wait for the approval notice before making the switch. Now, with current processing times over six months and the threat of NTAs looming in the event of a denial after I-94 expiration, workers will be hesitant to change jobs.
Announcement from USCIS:
USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.
While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.
Who Is Affected
- The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).
- The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.
We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:
- The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
- We did not take adjudicative action on the case within the 15-calendar-day processing period.