For All Fiscal Year 2019 Cap H-1B Petitions Effective Today, January 28, 2019
On Friday, January 25, 2019, the United States Citizenship and Immigration Services (“USCIS”) announced that effective Monday, January 28, 2019, USCIS will resume accepting requests for its Premium Processing service for Fiscal Year 2019 Cap-subject H-1B Petitions, including H-1B petitions subject to the advanced degree exemption (“master’s cap”).
How does this affect your H-1B Status:
- Effective immediately, cap-subject H-1B petitions for fiscal year 2019 (in other words, cap-subject H-1B petitions filed in the first week of April 2018 seeking H-1B employment to begin on or after October 1, 2018) that are still pending with USCIS can now be “upgraded” to Premium Processing by submitting a completed Form I-907, Request for Premium Processing Service, to USCIS with the appropriate filing fee ($1,410.00). Under the terms of its Premium Processing service, USCIS will process the H-1B petition (i.e., issue an approval, a denial, a notice of intent to deny, a request for evidence (“RFE”), or open an investigation for fraud) within 15 calendar days of receiving the Premium Processing request.
- This is important news for F-1 students whose Optional Practical Training (OPT) “cap gap” employment authorization expired on October 1, 2018 but have not yet received a decision on the H-1B petitions filed on their behalf. F-1 students who benefited from the “cap gap” extension of OPT employment were no longer employment authorized as of October 1, 2018 but have been permitted to remain in the United States while the H-1B petitions filed on their behalf are pending. These H-1B petitions can now be upgraded to Premium Processing, therefore providing both H-1B petitioners and beneficiaries with greater certainty by obtaining an expedited result of the H-1B petition.
- This is also important news for F-1 students with cap-subject H-1B petitions pending whose OPT or CPT is still valid but will expire soon. Upgrading to Premium Processing will allow these individuals to make better-informed decisions regarding whether to depart the United States, extend their F-1 status, or change to another lawful visa status based on the outcome of the H-1B petition.
- USCIS has instructed that H-1B petitioners who have received requests for evidence (RFEs) for pending fiscal year 2019 cap petitions should include their RFE response together with their Premium Processing request.
- With the exception of the above change for currently pending fiscal year 2019 cap-subject H-1B petitions, USCIS’s previously announced suspension of Premium Processing is still in effect. This means that (1) cap-exempt filings filed with the USCIS California Service Center and (2) H-1B petitions requesting a “continuation of previously approved employment without change” filed with the Nebraska Service Center remain eligible for Premium Processing. However, other H-1B petitions not covered above, including cap-subject H-1B petitions requesting a change in previously approved employment, a change of employer, new concurrent employment, or to amend a petition, are still ineligible for Premium Processing until further notice.
The decision to request Premium Processing is highly case-specific depends on the overall case strategy, unlawful presence issues, and other individualized considerations. Please contact Margaret W. Wong & Associates LLC if you would like to discuss the impact of Premium Processing in your case. As well, please stay tuned for additional updates on the availability of Premium Processing, as well as timely updates on the upcoming fiscal year 2020 H-1B cap filing reason.