U.S. Citizenship and Immigration Services has confirmed that on May 20 it will begin premium processing for H-1B cap-subject ‘change of status’ petitions only. The announcement follows the agency’s announcement in March that it will offer premium processing for H-1B cap petitions in a two phases, with the first phase beginning no later than May 20 for “change of status” petitions. The second phase of premium processing, covering all other H-1B cap-subject petitions, is not expected to begin until June 2019 or later.

Key points:

  • H-1B cap “change of status” petitioners are permitted to file their premium processing requests concurrently with their H-1B “change of status” petitions; those who do not file concurrently must wait until May 20 to upgrade their petitions to premium processing.
  • For all other H-1B cap petitions, USCIS will announce the date when premium processing will become available, anticipated June or later. Petitioners filing in this category should not file concurrent premium processing requests, and must wait until the date is announced to upgrade their petitions to premium processing.
  • Starting May 20 through the end of June, USCIS will not use pre-paid mailers to send out final notices for premium processing for change-of-status H-1B cap petitions. Instead, the agency will use regular mail to conserve resources and make use of a fully automated process that should streamline approval notices. The agency will resume issuing final notices in pre-paid mailers when operationally feasible.
  • In the second phase, the agency will be following a similar suspension in the use of prepaid mailers for the initial surge of premium processing requests and resume using pre-paid mailers when operationally feasible.
  • Premium processing remains available at this time for H-1B petitions that are exempt from the cap, such as extension of stay requests.

Background: USCIS announced on March 19 it would take a two-phased approach to premium processing for fiscal year 2020 H-1B cap season. 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.

BAL Analysis: The two-phased approach is intended to better regulate USCIS workflow and avoid having to suspend premium processing for all H-1B petitions. Employers filing for H-1B cap change-of-status requests should plan to file premium processing requests concurrently and anticipate the 15-day premium processing clock to begin May 20; they should also 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.

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