Wolfsdorf Rosenthal LLP

Premium Processing Temporarily Eliminated

On Friday March 3rd, it was announced that effective April 3, 2017, Premium Processing of H-1B Petitions will be suspended for 6 months. The reason given by the government was to allow for processing of backlogged applications, however one of the Trump campaign promises was to curtail and reform the use of H-1B visas so there is concern as to whether Premium Processing will ever be reinstated. One of the effects of this change is that H-1B cap petitions will not be able to be premium processed this year.

The elimination of Premium Processing will be a major detriment to employers who make job offers to H-1B workers who are currently employed at elsewhere. While the AC21 portability rules allow H-1B employees who are changing jobs to begin working at the job as soon as the new petition is filed, there is a natural reluctance on the part of many H-1B employees to give notice at a current job until the H-1B petition at a new prospective employer has been approved. The remedy for this dilemma up until now has been to Premium Process the petition so that it is approved within 2 weeks, allowing the prospective employee to give notice after the Petition is approved. Without Premium Processing, H-1B employees who are offered jobs, will need to make a huge leap of faith and leave a current job, knowing that a new petition will not be decided for months.

Next, employers will need to plan ahead as it pertains to filing of extensions of H-1B petitions. Current processing times for H-1B’s is nearly 8 months. Current law allows H-1B employees to continue to lawfully work for 8 months after expiration if an H-1B extension has been timely filed, however most states do not allow drivers licenses to be renewed after the date of expiration of the non-immigrant status of an individual; so in most cases it is critical that an H-1B extension be approved by the time the previous petition expires. We recommend that employers take one of two actions as applicable:

File an early extension via premium processing before April 3rd for any H-1B employees who expire before November of this year. (Again, we do not know if and when Premium Processing will be re-instated) Going forward, file petitions 8 months in advance of expiration and request that the law firm begin processing the application 9 to 10 months prior to expiration.

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