H-1B cap premium processing: concurrent premium processing only for ‘change of status’ cases, premium processing upgrades for all other cap cases in June or later

U.S. Citizenship and Immigration Services (USCIS) announced today that it will offer premium processing in two phases for H-1B cap-subject petitions, the first for “change of status” requests and the second for all other cap-subject petitions. The filing period for fiscal year 2020 cap season opens April 1.

Key points:

• The first phase of premium processing will be offered only for H-1B cap petitions requesting a change of status, and will begin no later than May 20, 2019. Starting April 1, 2019 petitioners seeking premium processing of these petitions may file a request for premium processing concurrently with their request for “change of status” for the H-1B candidate. If a premium processing request is not filed concurrently with the change of status request, petitioners must wait until premium processing begins to request it.
• The second phase of premium processing, covering all other H-1B cap-subject petitions, will not begin until June or later. These petitioners may not submit their premium processing request concurrently with their H-1B cap petitions. Once premium processing begins, petitioners will be eligible to request premium processing.
• USCIS will announce specific dates for the beginning of premium processing ahead of each phase.
• Premium processing for all non-cap H-1B petitions, such as extensions of stay, remains available.

Background: The announcement clarifies a previous announcement from last week regarding the resumption of premium processing. Premium processing allows petitioners to request 15-day service for an additional fee. USCIS must take action on the petition within 15 days or refund the fee.

USCIS also confirmed a few changes for this cap season. Under a new regulation, the agency will use a new H-1B cap selection process that reverses the order of the regular cap and advanced-degree exemption lotteries, thereby increasing the chance of selection for advanced degree holders. Additionally, the agency announced that it will be launching a new “H-1B Data Hub” on April 1 that will allow the public to search for H-1B petitioners by company name and see which employers are using H-1B visas.

BAL Analysis: Today’s announcement clarifies how USCIS will regulate premium processing for the upcoming cap season. Employers filing for H-1B cap change-of-status requests should anticipate that premium processing will not begin until May 20, and should note that change of status requests require that the candidate be physically present in the U.S. at the time the H-1B is filed and at least until approval. Employers filing all other H-1B cap petitions should anticipate that premium processing will not begin until June or later. BAL will continue to provide updates regarding the fiscal year 2020 cap as USCIS makes information available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.