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The Impacts of Premium Processing for H-1B Extensions and Portability

On August 28, 2018, the USCIS announced that an April suspension of premium processing for Cap-subject H-1B petitions would continue and would be expanded as of September 11, 2018, to other H-1B petitions, most notably, H-1B extensions and H-1B “change of employer”.

The suspension of H-1B premium processing for these types of H-1B petitions is expected to last until February 19, 2019, but could be continued beyond that time. No additional announcements have been made by the USCIS.

This suspension of premium processing expansion has impacted employers and individuals, especially as it pertains to H-1B extensions and H-1B portability.

The Impact of Protracted Processing Times

Under U.S. immigration law, an individual in H-1B status can apply to “extend” their H-1B status six (6) months prior to the expiration of their current H-1B status. Current processing times at all relevant USCIS Service Centers has H-1B extension petitions taking at least 6-7 months to be processed by the USCIS. This means that if an employer files an extension on the very first day it is eligible to do so for one of its H-1B employees, there is a real and distinct possibility that this extension petition will not be approved before the H-1B employee’s current status expires. Why is this important?

Longer processing times can affect day to day and international travel

Despite the fact that USCIS Regulations provide that an individual can remain in the United States in authorized stay and continue working for up to 240 days beyond the expiration of their H-1B status so long as their extension petition was timely filed and non-frivolous, many states will not issue an H-1B individual a new driver’s license without an actual H-1B Approval Notice rendering the 240-day rule ineffective for DMV purposes (most states will only issue a driver’s license for a period that coincides with the individual’s H-1B validity period). In instances where an employee depends on a valid driver’s license to get to work or to visit client sites, an invalid driver’s license can create logistic nightmare for employer and employee.

Similarly, if an H-1B employee needs to travel internationally for work or personal reasons after the expiration of their current H-1B status and their current H-1B extension has not yet been approved, that individual will have no means for re-entering the United States. The H-1B employee must have a valid Approval to apply for and obtain a new H-1B visa stamp in their passport – without this stamp, international travel is effectively ended for this individual and, depending on how long the H-1B takes to be approved by the USCIS, can be an extended period with no recourse for the company or the employee. This can have a profound impact on the employee should they need to travel internationally for family or personal reasons, and also eliminates their ability to travel internationally for work. 

Impacts to H-1B Portability

“Portability” is an important characteristic of of the H-1B Visa – it is attached to the visa holder, not the job position. An H-1B “change of employer” individual can begin working for their new employer once the new employer files an H-1B with the USCIS and has confirmation that the H-1B has been “filed,” i.e., the USCIS has and accepted the petition for processing.

Because of the increase in Requests for Evidence in H-1B cases and the increase in denials of H-1B Petitions, many H-1B holders are hesitant to move to the new employer until their H-1B “change of employer” petition has been approved, rather than just received as the rule allows. Without premium processing, again, these Approvals can take 6-7 months to be received by the employer.

This change in premium processing makes it even harder for employers to recruit the best and the brightest. Not only are talent pools are further diluted by both the H-1B cap’s arbitrary limitation on the petitions, but current H-1B holders are not willing to take the risk of filing for an H-1B Change of Employer in the event their case is denied and they are left without H-1B status, a job, and the ability to remain in the United States.

What can employers do to combat these unintended impacts of the suspension of premium processing for these H-1Bs?

Start the H-1B Extension petition process as soon as possible

We work with our clients to initiate Extensions 7-8 months prior to their current expiration date – this allows the employer and the employee to gather the necessary documentation and have it ready for processing. It allows us to prepare the petition and, on the first day possible, move the petition forward with the appropriate government agencies to get the petition in as early as possible and to try and eliminate the time between the current expiration period and the potential approval date.

Plan for the “gap” in travel accessibility

Assume that there will be a period in which your employee cannot travel when their current H-1B expires – do not schedule conferences, meetings, or client visits during this time if possible. Have the employee conduct client meetings at the employer site or via Skype when possible.

Limit the employee’s domestic travel as much as possible. Assume a driver’s license will not be available during this time and arrange for alternate transportation – bus, Uber/Lyft, ride share, etc.

Meticulously plan for H-1B Change of Employer cases

If applying for an H-1B Change of Employer, work with counsel and the employee to mitigate the potential “risks” as much as possible. Prior to issuing an offer of employment, work with your existing Immigration counsel to review the job title, job duties, and salary to discuss any potential issues or pitfalls – certain occupations have higher risks and these need to be understood, explained, and/or mitigated when possible.

Involve your immigration counsel in the recruitment process in case the H-1B employee has questions about the “risks” of accepting the position. Often times, education, understanding, and discussion can help an H-1B recruit wade through the “noise of the Internet” and get a clearer picture of the “reality” of the H-1B process and feel more comfortable about their chance of success. Additionally, when an H-1B recruit can ask questions about the process and obtain objective responses, it creates good will for the employer and establishes deeper connections in the recruitment process.

For positions that have been extremely difficult to fill, use the discretionary expedited review process:

  • Immigration Regulations allow an employer to request expedited review of a pending Petition if it is an “emergency situation” or will result in “severe financial loss to company or ​person”.
  • If the employer can demonstrate that the position is vital to the organization, not filling the position will result in financial loss, and/or that the position is an essential component of the organization, the employer can request expedited review. The grant of this request is discretionary and not subject to the mandatory 15-day review of premium processing, but if accepted, can drastically reduce the potential 7-month review period of most Service Centers.

Though the USCIS has indicated that premium processing will be resumed for these types of H-1B Petitions by late-February 2019, employers can take action now to mitigate the lack of premium processing until that time. Careful planning and communication will carry the employer into the New Year should the USCIS continue the suspension beyond February 2019. Additionally, many of these actions will help employers in the recruitment and retention of personnel by developing stronger connections and enhancing an employer’s good will with employees.

Having immigration counsel you trust is important if your company hopes to recruit and employ foreign workers. If you are hoping to hire an attorney, or change immigration counsel, contact us today for a complimentary consultation.

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