The USCIS just announced that it is suspending Premium Processing (PP) for all lottery cases this year. The suspension is expected to last through September 10, 2018. This means that only regular processing is available, which can take anywhere from 4-9 months. The lottery will still take place in April, and we will still know all lottery results by Mid-May or so. But, the applications chosen in the lottery will be processed in 4-9 months, not in 15 days with PP.
Employees with F-1 OPT EAD cards who are chosen in the lottery can work with their EAD cards through 9/30/18 (unless the H-1B application is denied before then), and their H-1B’s will become effective 10/1. But, those employees cannot travel internationally after their EAD cards expire, until 9/20/18 or so, at which time they can travel and return with their H-1B visa (assuming their H-1B application was processed and approved by then).
Without PP, employers & employees will not learn of any problems in the case for a few months. An applicants’ EAD card may be expired by the time they hear from the USCIS about a problem or concern in the case (through a Request for Evidence or denial, for example). This could leave very little time, if any at all, for the employer & employee to figure out an alternate plan for the employee to live & work in the US, and for the employer to resolve resulting staffing & operational issues. Once an F-1 OPT EAD card is expired, and the H-1B is denied, the employee can stay in the US for another 60 days, but can no longer work.
There can be other complications caused by the suspension of PP. For example, many times, an employee’s drivers’ license is linked to the expiration date of his work authorization document. So, an F-1 OPT’s drivers’ license is likely to expire at the same time as the EAD card. Many states require the H-1B approval notice to renew the drivers’ license. Without PP, that approval notice will be greatly delayed, which could result in having an expired drivers’ license for a few months; hampering the employee’s ability to perform his/her job duties.
If an H-1B lottery case is still pending on September 10, 2018, and PP is resumed, then employers can request that the case be upgraded to PP and receive a response in the case in 15 days.
All non-lottery H-1B cases can still file through PP. Thus, H-1B extension and transfer cases can still file through PP. This suspension does not affect them.
It is best to be proactive and assess the situation for each H-1B lottery applicant, looking to see what will happen if that case is denied in late summer, for example.
If you have any questions about this e-alert, please contact Berin Romagnolo.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2018 Posternak Blankstein & Lund LLP. All rights reserved.
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