IT’S H-1B season again. On 4/3/2017, the USCIS will start accepting H-1B applications for the 2018 fiscal year. As you may be aware, the H-1B non-immigrant visa is used by various U.S. businesses to hire or employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as accountants, scientists, librarians, psychologists and financial analysts.
What makes this season’s different is the suspension of premium processing for H1-B applications this year. Last 3/3/2017, the USCIS announced that it was temporarily suspending premium processing for all H1-B petitions starting 4/3/17. Under the current system, an employer can pay an additional $1,225 fee for premium processing to receive a decision from the USCIS on an H1-B application in 15 days as opposed to months in normal applications. The USCIS will reject any Form I-907, Request for Premium Processing Service filed for H1-B applications. The suspension may last for up to six months. Considering that the fiscal year-cap subject H-1B petitions cannot be filed before April 3, 2017, premium processing is essentially suspended for both H-1B regular cap and master’s advanced degree cap exemption.
The USCIS noted that the suspension will allow them to “(p)rocess long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years” and “(p)rioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.
With the suspension of this service, the employer will have to wait before it gets notified as to whether the petition has been chosen for the quota lottery or not. Currently, the USCIS usually takes six to eight months to adjudicate some H-1B petitions. That means that it is possible for a foreign employer to find himself unable to start work by October 1, 2017 (the earliest allowable start date of work for fiscal year 2018) since the application may still be pending by then. Likewise, current H1-B holders who want to transfer or renew may find themselves in a dilemma because they can only work for an additional 240 days while their applications are pending.
The H-1B visas have been in the news lately for another reason – critics have pointed out that the system has been abuse to exploit and hire cheap foreign labor to the detriment of local US workers and the initial goal of the program – to attract the most highly trained foreign workers – has ignored. They say large outsourcing firms have been able to disproportionally corner a large number of 85,000 H-1B visas allowed each year. President Trump has also expressed his dissatisfaction of the program. There is a pending legislation in the US Congress raising the H-1B holders’ minimum salaries from $60,000 to US $130,000 to curb alleged outsourcing abuse.
Indeed, the H1B visas, as well as other immigration matters, are within the radar of the current administration.
If you are contemplating of filing any waiver application or any immigration petition for that matter, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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