On Apr 01 2020 by Maria M. Mihaylova
How to Manage Hiring Needs during the Suspension of Premium Processing
On March 20, 2020 the United States Citizenship & Immigration Services (USCIS) temporarily ceased accepting any requests for premium processing on all Form I-129 and Form I-140 filings. The decision became effective immediately as another effort of USCIS to ease the burden on its operators amidst the COVID-19 health crisis. As a result, employers and foreign workers alike are now trying to manage their expectations, plan onboarding timelines, and strategize extensions and account for months-long processing.
As USCIS has not announced a projected timeline for reinstating premium processing, our Klasko Immigration Law Partners team would like to cover common scenarios and frequently asked questions we are addressing since the suspension is beginning to produce its initial response.
Our new hire needs an H-1B transfer but does not feel comfortable starting without approval.
A common use for premium processing is expediting change of employer petitions to ensure a smooth transition for both our business clients and their new hires. From the foreign national, premium processing provides a sense of security and certainty of outcome. For the employer, it was a way to expedite the onboarding process while fostering a positive working relationship with the foreign national employee.
With the suspension, employers and employees are both left wondering how to best balance the need for finality and onboarding talent in time to meet business and operational needs. One answer that is worth discussing comes from the federal regulations themselves. Specifically, the regulations expressly allow H-1B beneficiaries to port onto their new employers and commence working on the day USCIS receives the I-129 filing from their employers. Thus, waiting for the H-1B approval notice was never a requirement but a means for the new employee to ensure they were never at risk of losing their status.
In January 2017, the former Obama administration introduced additional protections that sought to ease the transfer process for employers and employees alike. This included a grace period of 60 days during which H-1B employees can port to new employers even if their prior H-1B employment had terminated and their prior approval was withdrawn. Secondly, the Obama administration clarified that the 240-day extension rule does not apply to H-1B portability, thus allowing H-1B employees to start working for their new employers on the day USCIS receives the I-129 filing in the mail and until an adjudication was made, even if it took more than 240 days. Despite the Trump Administration’s consistent focus on dismantling immigration protections across all visa categories, both of these protections are very much alive and well currently.
Thus, even without premium processing, both employers and employees can and should continue operating normally and should plan to rely on the protections already built into the system. While the security an employee feels from having their approval on hand will imminently not be there for the time being, the system is still flexible enough to allow employers and their attorneys to effectively protect the H-1B workers even without premium processing.
If you are an employer planning to transfer an H-1B worker or an H-1B beneficiary who is considering changing employers, our team is available to answer any logistical or substantive questions and help you find common ground and a solution that can work for all parties.
My H-1B will expire soon. I am nervous my approval won’t come in on time without premium processing.
Luckily, the answer to this concern is quite simple. The regulations already foresee that USCIS will not always be able to process requests for extensions before the expiration of the most recent approvals. As a result, many visa categories that require an I-129 filing, including H-1B, benefit from an automatic 240-day extension of work authorization, provided that a timely request for an extension was made. Whilst the regulations do not protect the H-1B worker’s right to travel, the present health crisis itself has severely restricted the ability of individuals to travel internationally, or even domestically.
While it is not an ideal scenario for employees, H-1B workers can rest assured that regardless of when premium processing is reinstated, their right to work will nonetheless be protected as long as their extension requests are timely filed. Your Klasko attorney is available to ease any concerns during the premium processing suspension and help you navigate all upcoming deadlines and milestones to ensure you successfully protect your status in the United States.
Does the suspension apply to all visa categories and all service centers?
Unfortunately, yes. The suspension became effective on March 20, 2020 and applies to all Form I-129 and Form I-140 filings, thus affecting the bulk of non-immigrants in lawful status presently in the United States. To best ensure maintenance of status, employers should continue timely filing requests for extension or change of status as usual and should plan to rely on the already built in regulatory protections and tools available to them and discussed above.
Both employers and employees should also be mindful of the fact that unlike previous suspensions, USCIS has not indicated a projected date for reinstatement. Multiple factors can and will affect when it might be reinstated and make it harder for USCIS to properly project a target date. On one hand, the Service Centers, much like USCIS field offices, support centers, and asylum offices are operating under the same COVID-19 restrictions with some of the centers being in hot spots like the State of California. On the other hand, the annual H-1B quota will be drawn within the next few days and USCIS will have to also test out the newly introduced system for the first time. The new H-1B process envisions a 90-day filing window, which should allow USCIS to streamline its processing, thus offsetting some of the hardship imposed by the COVID-19 health crisis.
Given that USCIS now has to manage two new variables, one of which is out of their control, and one of which is new and unknown to them, employers and employees should be prepared to live with the realities of regular processing and lack of expedite options for at least the next three months. If the USCIS’s suspension of premium processing in 2019 is any indication, we may see a gradual reintegration of the service at some point late in the summer.
Do I need my I-140 approved to get a three-year H-1B extension under AC21?
This is a very real, and very important problem many H-1B holders face. A timely solution is essential as most H-1B workers are subject to green card backlogs and must eventually secure an I-140 approval in order to extend their H-1B status beyond the initial six years allotted under the regulations. When premium processing is suspended, the best way to protect an employee’s continued ability to work is an early start with both the permanent labor certification process and the I-140 filing after that. Such cases should be prioritized by employers and may require creative solutions to petition filings and argumentation.
If you are an employer whose employee is in their sixth year of H-1B time and does not currently have an approved I-140, we highly recommend discussing the specific factual situation with one of our attorneys. We are also here to talk to employees whose green card processes have been started but do not yet have a perfected priority date and whose H-1B is nearing six years of the allotted time.
I am not on an H-1B but have a new offer. Can I start working immediately once the petition is filed or do I need to wait until approval?
This question is increasingly common from our clients and further emphasizes the important role premium processing played for many foreign workers. As flexible as the regulatory framework is, the portability protections discussed earlier in our piece apply solely to H-1B holders. However, industries employ a wide variety of non-immigrant workers, including people of extraordinary abilities (O-1 and P-1 alike), Canadian and Mexican professionals (TN), Australian professionals (E-3), Singaporean and Chilean professionals (H-1B1), and intra-company transferees (L-1). All of these non-H-1B workers do sometimes change employers. Many of them require an I-129 filing, and the ones that do not, must either travel abroad and apply for a visa or at a port of entry, or file an I-129 petition with USCIS. All of these workers are heavily affected by both the present travel restrictions and the lack of premium processing, as under the regulations they must wait until their I-129 petitions are approved in order to transfer and begin working for a new employer.
While the current suspension and travel restrictions will ultimately delay the start dates for many of these individuals, it is important to remember that not all avenues to expedite a case are completely shut off. Traditionally, USCIS has the discretion to expedite the review of some petitions provided that employers can successfully document the existence of certain limited factors, including severe financial loss. While USCIS’s decision is entirely discretionary, it has, in years of past premium processing suspensions, entertained such expedite requests in some cases. Clients should be prepared and should discuss such options as the need arises with their immigration attorneys. In turn, attorneys should be prepared to explore this option as the need arises. As any discretionary form of relief, requests should be made sparingly and only in cases where there is a substantial documented business need.
If you are an employee who is not in H-1B status but has a change of employer petition pending or are a business that is looking to transfer someone who is not in H-1B status, contact a Klasko employment based attorney to discuss and properly plan the transfer and relevant start dates.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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