U.S. suspends fast-track H-1B processing, blames backlog

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By:  Patrick Thibodeau

The White House decision to suspend premium processing for H-1B visa holders is being blamed on a visa backlog. It will affect some people seeking visas who may be in need of this fast-track system.

The U.S. government is hoping that its decision to suspend premium processing, announced late Friday, leads to an improvement in overall processing times.

President Donald Trump has talked about moving to a “merit-based” H-1B system instead of a lottery, but the administration has been mum on details. There is concern within the tech industry about H-1B reform, but the action on premium processing may be unrelated to that. Meanwhile, there are differing views about the value of fast-track processing.

“While it may not affect a huge percentage of the H-1B worker population, those who will be affected may be impacted in a very significant way,” said Dimo Michailov, an immigration attorney with the Capitol Immigration Group in Bethesda, Md.

But Carl Shusterman, a Los Angeles-based immigration lawyer, said that for some of his clients, particularly in the computer field, the extra fee isn’t worth it.

“We tell all our corporate clients not to use it because they are just wasting their money,” Shusterman said.

With H-1B premium processing, employers pay $1,225 and learn within 15 days whether their H-1B petition has been accepted, denied or if they need to provide more evidence in support of it. The U.S. accepts H-1B visa petitions on April 1 for the fiscal year that begins Oct. 1.

The U.S. has suspended premium processing in the past but for more limited time periods and only for certain types of H-1B petitions, but Michailov described the six-month suspension as “unprecedented.”

Premium processing can be used by H-1B employers for any number of reasons. For instance, people who are working on an F-1 visa for students in the Optional Practical Training program might use it, Michailov said. For H-1B applicants, their F-1 visa work authorization is automatically extended if their visa is set to expire between April 1 and Sept. 30.

Michailov said the risk for people moving from an F-1 to an H-1B visa is that “their H-1B will be rejected under the lottery when their EAD (Employment Authorization Document) work permit has expired or is about to expire and they will find themselves without permission to continue working, and they will scramble to find an alternative way to stay in the U.S,” he said in an email.

“With premium processing, such candidates would get to know much earlier if their H-1B is picked by the lottery and if not, then they and their employers will be able to have more time to seek alternatives,” Michailov said.

Another instance where premium processing may help is for H-1B workers who lose their jobs but then file for a new H-1B employer. Without premium processing, these workers might have to wait for months — as opposed to 15 days — for their new employer’s H-1B visa to be approved so they will be able to start working, Michailov said.

The H-1B visa lottery will be held shortly after the first week in April, assuming the U.S. receives enough petitions in the first week to meet the 85,000 cap. That seems certain. Last year it got more than 230,000 petitions.

There is an argument that premium processing helps with workforce planning, but Shusterman said that employers usually find out in June whether their petition was picked in the lottery.

Shusterman said premium processing particularly matters for someone who is changing a visa status. He said his firm represents many physicians who are finishing residency at the end of June and are on a J-1 visa. They will be seeking an H-1B visa under a program that allows them to work in medically underserved areas.

The goal is to get the physicians working by July 1, said Shusterman, but without premium processing, they may face several months of unemployment, he said.

Shusterman is aware that people are asking whether the premium processing decision is the first step in reforming the H-1B program, but he is skeptical. “I’m having a hard time thinking this is a Trump plot,” he said.