USCIS Suspends Premium Processing AgainUSCIS Suspends Premium Processing Again – Is Simeio or Trump to Blame?

By: Brandi knox, Esq.

U.S.-based employers will have to wait until February of next year to utilize the government’s expedited processing option for cap-subject H-1B visa petitions, H-1B change of employer petitions and certain other H-1B petition types.

On August 28, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that the temporary suspension of the agency’s premium processing service would be extended until February 19, 2019, and expanded to include additional types of H-1B petitions.  Specifically, the suspension applies to pending fiscal year 2019 H-1B cap cases and, as of September 11th, most H-1B petitions seeking changes of employer, changes of status and amendments of the terms of employment.

Under expedited processing, H-1B adjudication times are shortened from an average of five to seven months to 15 calendar days for an additional fee of $1,410.  In correspondence published on the agency’s website, the Service indicated that the extended suspension will reduce overall H-1B processing times by allowing USCIS to work through a growing backlog stemming from the 2015 Simeiodecision.

Pursuant to Simeio, an H-1B employer must file an amended or new H-1B petition when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s place of employment.  Specifically, the decision stated:

  1. A change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified to the Department of Homeland Security (DHS) with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).
  2. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.

This precedent decision represents the USCIS position that H-1B petitioners are required to file an amended or new petition before placing an H-1B employee at a new place of employment not covered by an existing, approved H-1B petition.

Unfortunately, the aftermath of Simeio has resulted in a high volume of H-1B amendment petitions being filed with the Service.  USCIS has yet to respond to this increase by hiring more adjudicators.  Rather, the agency, between 2015 and 2016, saw a 25% jump in the number of Ombudsman requests for help, primarily due to delays beyond normal processing times, and most commonly related to nonimmigrant work-authorized visa petitions and green cards.

From Simeioto the Trump administration, the restrictions on the H-1B program have made it harder for employers to obtain timely approvals of their petitions. Sadly, this has not been done through legislative action supported by a notice and commenting period.  Instead, these drastic policy changes stem from internal agency directives.  Previously approvable H-1B visa petitions are now receiving Requests for Evidence that are nearly impossible to overcome.  Even after valiantly submitting evidence in response to an RFE, the H-B petition is more susceptible to being denied.  

To add insult to injury, the agency’s official position as to why premium processing has been suspended and this suspension extended through February 19, 2019 is a failed attempt to hide the Service’s true intention, which is to further the Trump administration’s objective to restrict the H-1B visa program.  Pursuant to “Buy American and Hire American” Executive Order No. 13788, legal immigration should be restricted  for the purpose of protecting American workers. However, this rationale is completely erroneous given that our nation participates in a full employment economy.  Specifically, businesses compete in a global market and rely on foreign workers to maintain a competitive edge. Therefore, the only other possible rationale to restrict legal immigration is to advance white nationalism, which is what Trump promised and continues to promote to his base.

What does the suspension mean for H-1B cap cases?

The suspension of premium processing for H-1B cap cases means that employers who were relying on foreign nationals to commence employment on October 1, 2018 may no longer be able to do so if the H-1B petition is not approved. This renders the H-1B visa program virtually useless.  Employers were required to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery. Since USCIS received 190,098 H-1B cases earlier this year, which exceeded the maximum 85,000 H-1B visas that can be issued, more applications were rejected than accepted. Those H-1B petitions that got selected are susceptible to receiving an RFE and a possible denial under the new heightened scrutiny policy.  Moreover, there are many cases that have not been adjudicated since they were filed in early April 2018, and without premium processing, remain pending. As a result, employers will likely not be able to hire the H-1B worker on October 1, 2018 even though the job offer was made six months prior and the petition is potentially approvable. Furthermore, students who are working for the employer under Cap Gap provisions will have to stop on October 1, 2018 unless the change of status request from F-1 to H-1B is approved on or before that date.

What does the suspension mean for H-1B Change of Employer cases?

H-1B visa holders who are changing employers will not be able to get the assurance of an approval when they make the switch.  Although an H-1B worker can port to a new job without waiting for the approval, so long as the employment starts after the new employer has filed the H-1B petition and request for extension of status, both employers and H-1B workers would like the security of an approval before they start their new jobs. The expansion of the suspension of premium processing will hinder mobility of H-1B workers. This in turn will hinder competitiveness and will also inhibit skilled H-1B workers from improving career prospects and getting better compensation, resulting in an adverse impact on US competitiveness in the marketplace.

Thus, it is no surprise that U.S.-based businesses are complaining  that they are suffering because they are limited in their abilities to recruit foreign talent.  As companies struggle to fill jobs they need with foreign workers, their ability to remain competitive, both in the U.S. and global marketplaces, is threatened.

What can employers do?

If the USCIS excessively delays the adjudication of H-1B visa petitions due to lack of premium processing, one possible solution is to file mandamus actions to compel the agency to make a decision. For more information about filing a mandamus action, please contact The Fogle Law Firm at 404-522-1852.