What Suspension of Premium Processing for H1-B Visas Mean for Employers, Holders

Last September 11, the United States Citizenship and Immigration Services (USCIS) suspended premium processing for H-1B visas until February 19, 2019. For those who are not yet familiar with H-1B visas, they are granted to highly skilled foreign workers. Most of the time, Silicon Valley relies on this working visa.

Formerly, premium processing allowed companies to pay an additional fee to expedite their H-1B visa requests and receive a resolution within two weeks. While processing times vary between facilities, now you can expect to wait anywhere from three to nearly eight months to hear back about a case, according to USCIS.

Premium Processing Service is offered for some employment-based temporary and permanent petitions filed with USCIS. By paying the new fee of $1,410 in October, USCIS commits to adjudicate the petition in 15 days or fewer. If USCIS fails to meet that processing time, it must return the fee to the petitioner. Consulting with an immigration lawyer is advised, as as news and policies keep changing.

Among the issues a global mobility would need to review with their immigrations lawyers include the fact no H-1B petition filed on behalf of an H-1B professional changing employers – or changing jobs or location with the same employer – can be filed with premium processing during this suspension.

Also on September 11, USCIS officers were granted full discretionary power to deny a visa application outright, without first sending an RFE. This means that employers and employees may not have a chance to submit additional evidence to support an H-1B visa application before it gets denied.

It cannot be stressed enough here that H-1B visas have prompted a 45 percent surge in Initial Requests for Evidence (RFE), in which additional documents are required to support an application’s eligibility.  

So who will be hurt the most by this suspension and all the challenges facing both employers and foreign talents? Employees in H-1B status seeking to leave their current jobs for ones that pay a higher salary will be hurt the most as they will have to stay with their current employer. Employers may stand to benefit for that particular H-1B holder but will suffer if they require more employees and they cannot find them locally.

H-1B holders will feel tied down as they will be reluctant to quit the job until they are sure that the new job is also approved for H-1B status.

If they would like to see their family in their home country, they may have to put off travel plans if they need their H-1B petition approved to return to the United States.

There is also the Notices to Appear memo to consider, which instructs officers to initiate removal proceedings if they deny a petition or application and the denial leaves the foreign national without status.

This makes H-1B employees nervous about changing jobs or projects without first obtaining an approval for the new job or project.

Premium processing would ensure the individual receives a decision while still in legal status, instead of having a decision take so long that by the time a decision is reached the individual is out of status and could potentially be placed in deportation proceedings.

From a business perspective, most employers can wait two weeks for an employee to start, but very few can wait 5 to 7 months.

Forbes asked immigration lawyer William Stock, a founding member of Klasko Immigration Law Partners, LLP, a few questions about how his law firm would handle the concerns of highly skilled foreign nationals worried about this USCIS decision?

He said, “One piece of advice that seems more and more necessary is: “Don’t panic!” Many foreign nationals feel under siege from the current administration, and this decision to suspend premium processing deprives H-1B professionals of one way to feel a little more in control of the process.

“The second piece of advice would be that premium processing is not always necessary to achieve immigration and professional goals. A new employer can be transparent with employees about recent adjudication trends they have seen, and a good attorney can predict those cases more likely to be a problem in today’s environment.

Even with the extra scrutiny being given certain H-1B petitions, starting a new position while the new employer’s petition is pending is allowed under the H-1B portability rules, and often in the employee’s best interest.”

Stock thinks employers should be prepared to offer employees good counsel about the risks and benefits of changing employers without an approved petition in hand.

Global mobility managers would do well to know these matters ahead of time. Foreign talents need to focus on work — and not worry about the unnecessary distraction, although it’s important to be aware and on-guard as well. It is hoped that the government will realize that high-skilled professionals on H-1B visas are critical to many businesses and benefit their local economies through their taxes and purchases.