The U.S. Citizenship and Immigration Services (USCIS) announced May 19th that it will temporarily suspend premium processing of all H-1B extension of status petitions effective May 26, 2015 until July 27, 2015.
Premium Processing service permits employers to request the USCIS to adjudicate (approve, deny or request additional evidence) petitions within 15 calendar days via the filing of the Form I-907, Request for Premium Processing Service and the payment of an additional filing fee of $1,225.00.
USCIS states that this temporary suspension will permit them to adjudicate the applications for employment authorization for H-4 spouses who are married to H-1B employees that are in a certain stage of the permanent resident process. The USCIS is being “proactive” in anticipation of thousands of applications for employment authorization documents that may be filed by H-4 spouses beginning May 26, 2015 based on a regulation published earlier this year. It is important to note that this regulation could be negatively impacted if the court grants a preliminary injunction as the result of a lawsuit filed by a group of former Southern California Edison employees against the U.S. Department of Homeland Security this past April. If the court grants the preliminary injunction, USCIS will not be permitted to process the employment authorization documents applications to be filed by H-4 spouses, making the announced suspension of premium processing unnecessary.
UPDATE May 24, 2015
A Federal Court refused to grant the preliminary injunction injunction that would block processing of employment authorization for eligible H-4 Spouses, therefore applications are being processed as planned, and the impact to premium processing for H-1B extension of status petitions remains.
Could this suspension affect H-1B extension of status petitions filed via premium processing prior to May 26th?
Possibly. USCIS has stated that if an H-1B extension of status petition was filed prior to May 26, 2015 via premium processing and USCIS does not act on the petition within the 15-day calendar period, it will refund the premium processing fee.
What about other types of H-1B petitions?
What is clear from the USCIS announcement is that premium processing requests will be accepted for H-1B cap petitions and for H-1B petitions requesting change of status or consular notification. What is not entirely clear from the announcement is whether H-1B petitions requesting an amendment without an extension of H-1B status will be affected. An amended H-1B petition is filed with USCIS when there is a change in a term of employment, such as a change in position or worksite, or even a change in employer, but no request to extend the validity of the current H-1B expiration date. If no extension is requested, USCIS will presumably accept an amendment petition for premium processing. Once USCIS issues additional guidance, we will provide an update.
We will be following the developments of this temporary suspension of premium processing as well as the lawsuit filed against the work authorization for certain H-4 spouses and will provide updates as they become available. If you have any questions, please contact your Maggio + Kattar attorney.