Ready, Set... Keep Waiting to Hire H-1B Workers

Posted by Jeff Pelliccio on Nov 2, 2018 9:00:00 AM

In ICS insights, hiring trends, client

With the continued suspension of Premium Processing of H-1B visas, employers have to postpone starting dates for these workers far ahead of October 1st, the usual start date for these positions. Anyone who missed the September 11, 2018 deadline to file under the Premium Processing rules now has to wait for the "normal" waiting period of four to six months. This may have a dramatic impact on companies that rely on H-1B workers for a significant percentage of their workforce.

For employers hoping to onboard foreign talent, the latest decision by the U.S. Citizenship and Immigration Services leaves them in a lurch.  The lengthy and complex H-1B approval process puts some industries on a precipice because they cannot find similar skillsets at home. In August, the Federal Immigration Agency said it intends to prolong the suspension of the Premium Processing for certain H-1B worker for up to six more months. Originally, the halt on premium processing for H-1B visas for the 2019 lottery was supposed to end September 10, 2018, but it's been extended through next year, as late as February 19, 2019.

Suspension of Premium Processing 

Premium processing is a faster, 15-day expedited processing option offered for a $1,408 fee. As of September 11, 2018, the hold is now applied to a wider scope of employment openings, and these regulations are a burden for U.S. employers and businesses that need foreign workers to fill specialty positions. For F-1 students reliant on the H1-B “Cap-Gap” extension, a much longer H-1B processing time is likely to cause a work authorization lapse since H-1B visa approvals aren't likely after  October 1.

Some students seek employment under an F-1 status via Optional Practical Training (OPT), but they must now give up on employment in the U.S. until their H-1B applications get approved. Once those holding an H-1B have filed a petition, it's recommended that they remain in the U.S. until it's processed. Otherwise, their likelihood of receiving approval greatly diminishes. Traveling while the application is being considered can result in the revocation of Cap-Gap privileges, such as students eligible to receive legal status under F-1/Opt. This is typically construed by USCIS as job abandonment as well as the abandonment of their H-1B petition

Are There Any Exceptions?

There are few exceptions to the new regulations beyond a limited group of exempt cases. The expanded Premium Processing suspension is a blow to just about all H-1B cases filed in California and Vermont. USCIS will process Premium Processing for H-1B applications that haven't been suspended as long as the employer had accurately filed a request for Premium Processing prior to September 11, 2018. The suspension of Premium Processing doesn't impact nonimmigrant visa classification that requires a petition on Form I-129.

USCIS does refund  the $1,225 Premium Processing fee to as long as:

  • The employer who filed the petition filed a request for premium processing via Form I-907 for an H-1B application submitted before September 11, 2018
  • USCIS hasn't taken adjudicative action within the 15 calendar days it takes to process the request.

Some H-1B petitions still hold Premium processing status, including: 

  1. Petitions to the California Service Center via cap-exempt employers or thanks to the H-1B worker being employed by a qualifying cap exempt agency or organization.
  2. H-1B petitions to the Nebraska Service Center via a corporation that wants a “Continuation of previously approved employment without change with the same employer” (Found on Form I-129, Box b. of Part 2, Question 2, located on Page 2 of the Form I-129).
  3. The employer must notify the office via Part 4 in order for each worker to get a visa or be admitted. (This box is found on Part 2, Question 4 of Page 2 of Form I-129)
  4. Extension for each beneficiary that now holds this status. (Found onBox c. Part 2, Question 4 of Page 2 on the Form I-129).

USCIS states that suspending the extension helps the Immigration Agency to decrease the total number of H-1Bs, which saves processing times for: 

  • Petitions that have been pending a long time and that USICS hasn't been able to process thanks to the high volume of incoming petitions since the changes were announced.
  • Petitions with time-sensitive start dates
  • Prioritization of H-1B extension of status cases close to the 240-day mark.

Employers can request an expedited processing time for an H-1B visa petition under certain conditions called Expedite Criteria  An employer has to show that their enterprise meets at least one of the expedite criteria and should have documentation prepared and ready to submit on a moment's notice. USCIS reviews these requests and grants them at the discretion of its leadership.

Employers should consult an immigration attorney regarding H-1B workers impacted by the Feb 2019 processing delays, who may have a hard time while traveling internationally.

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