On Mar 20 2019 by William A. Stock

CLIENT ALERT: USCIS Announces Details on Premium Processing for FY 2020 Cap-Subject H-1B Filings

By: William A. Stock and Steven R. Miller

Yesterday, the USCIS announced changes to the suspension on premium processing of cap-subject H-1B petitions for Fiscal Year (FY) 2020. This announcement provided more clarity on an anticipated shift in policy, laying out the how’s and when’s of premium processing resumption. Premium processing for FY 2020 cap cases will occur in two phases, the first being open to change of status petitions, and the second to all others.

As the announcement notes, the USCIS will begin accepting cap-subject H-1B petitions on April 1, 2019. Among petitioners filing under the FY 2020 cap, those requesting a change of status on the Form I-129 will be permitted to file Form I-907 Request for Premium Processing Service concurrently with the I-129. However, the 15-day premium processing adjudication clock will not actually start until a later date—May 20, 2019, at the latest, according to the announcement. The USCIS will provide public notification before premium processing on these filings begins.

It’s important to note that if an H-1B change of status petition is filed, but the I-907 Request for premium processing is not filed concurrently, the petitioner will be allowed to upgrade to premium processing once the USCIS starts the clock on premium processing for these petitions – most likely in late April or early May, once the random selection process or “lottery” has been completed.

All other cap-subject H-1B petitions not requesting change of status cannot file for premium processing concurrently with the I-129, and must wait until an as-yet-to-be determined date to upgrade. Per the announcement, the USCIS will not open premium processing for these filings until at least June 2019. As with the change of status premium processing phase, the USCIS will provide public announcement of the date when upgrade requests will begin to be accepted.

While this may seem like a great opportunity to move eager applicants quickly through the process, we recommend exercising some restraint and not file for premium processing before lottery selection. Given the costs of applying for premium processing ($1,410 as of this writing), it is our suggestion that cases only be premium processed once they have been selected in the lottery. Even if you are filing a change of status H-1B petition, filing for premium processing concurrently with a petition that might not even be selected for adjudication risks not only rejection of the premium processing request, but rejection of the entire petition (and loss of the cap number) if there are any problems with the premium processing check.  

Yesterday’s notice also announces the launch of the H-1B Data Hub—a searchable online database of H-1B petitioners that will be available to the public beginning April 1, 2019—and confirms the implementation of the rule reversing the selection process for the FY 2020 cap petitions. Our summary of the selection rule is here: [link to update] 

The USCIS notice is available in full here.

​If you have questions about this client alert, please contact your Klasko Law attorney.