The USCIS announced last weekend that starting April 3, 2017, it will not allow premium processing for H-1B Work Visa applications for the next 6 months.
The official announcement of the immigration authority can be found here.
Is the decision a part of the Trump Administrations’ policy?
Despite various reports that are trying to attribute this temporary cancelation to President Trump, as part of his immigration policy, this is not an executive order as was the policy change a month ago, but the decision of the Immigration Authority who frequently makes such verdicts. The USCIS allege that the reasons to temporarily disable the premium processing for the H-1B visa are to enable them to decide on long pending requests that accumulated due to the large number of applications submitted through premium processing in recent years. Moreover, the USCIS expressed a desire to advance the processing of applications and extend H-1B visas that are approaching their expiration date so that holders are allowed to work in the US after the visa expires, assuming that they filed an application to extend their visa on time (240-day mark).
What is the Premium Processing procedure?
This Premium Processing procedure, is a process that for a fee of $ 1,225 USD, allows the applicant to receive an answer to his request for a visa within 15 days from the date of submission. This is a relatively short time compared to the time it takes to receive a response from the USCIS without an expedited procedure, which is usually 3-4 months and sometimes even longer. The expedited procedure is also more convenient in the sense that it allows more direct contact with the USCIS.
What is the H-1B visa?
Visa H-1B is a work visa in the US. This visa is designed for professionals with specialized occupations. Usually, it will include those with degrees in engineering, math, business, science and technology that suits this visa, and others. You can replace the criterion of a degree with professional experience.
The H-1B minimum requirements does not include difficult prerequisites, such as a financial investment or experience. Usually, it quite simply just requires a meeting between the US employer and a foreign worker with appropriate expertise. That is the reason that this visa is very desirable. For new H-1B visas there are annual quotas that are opened in early April each year (65,000 plus 20,000 visas for US graduates of advanced degrees). In view of the high demand for this visa, these quotas are filled in a short time, sometimes within a few days.
The number of H-1B visas holders in 2016 was about 180 thousand people, and in recent years there has been a noticeable increase: in 2015 – about 172 thousand workers, in 2014 about 161 thousand workers, in 2013 about 153 thousand employees and in 2012 as 135 thousand employees.
What does freezing Premium Processing include?
Temporary disablement of Premium Processing includes all types of requests for H-1B work visas, including requests for workers with bachelor’s and master’s degree, applications that are not under quotas (e.g. Those switching between employers), requests for visa extensions and requests to change status (from a temporary visa to H-1B work visa).
It is important to note that the freezing of the expedited procedure is for H-1B visas only. Expedited procedures will still be possible for other visa applications, such as an L-1 work visa.
The consequences of freezing Premium Processing
For those submitting new applications, eliminating the expedited procedure will mean that the worker and the employer will not be able to know within a reasonable time whether their application was received. This uncertainty can lead to preference for American workers over foreign workers. It should be clarified that in any case that applications for new H-1B work visas are being accepted, but that workers cannot work in the US before the beginning of October 2017, so it is essential that they know about this freeze and can plan accordingly, but it will not change the date of commencement of work.
The biggest problem is for those who live in the US and already hold an H-1B visa and wish to extend it, or change employers. These people will now have to wait longer to get an answer and for those whose visa may no longer be valid, it will require them to leave the US without being able to return until they receive a decision from the USCIS. If they have family with them, they too will have to leave the US.
Ways to cope
There are several ways to deal with the new situation. For those who are able, it is advised to apply for an extension or change an employer before April 3, 2017. You can also consider other work visas and applying for a green card (permanent residence).
In addition, it is still possible to apply for special treatment procedure (Expedited processing), but in this case the applicant must prove that he meets the requirements of at least one condition of the conditions cited in the rules, such as financial losses to the company or the employee, an emergency, US national interests, etc., for humanitarian reasons and more. It should be clarified that these requests have wide discretion and can be limited, compared to request of Premium Processing that is usually subject only to the payment and fulfillment of the relevant application form.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.