USCIS: H-1B Cap Season Starts April 1, Early Applications to Be Rejected, Premium Processing Prioritizes I-129s Filing Change of Status

The U.S. Citizenship and Immigration Services (USCIS) announced a new two-phased procedure for premium processing of H-1B applications to prioritize FY 2020 cap-subject petitions.

• Phase one will prioritize cap-subject H-1B petitions filing for a change of status.
  Petitioners who request a change of status on their I-129 form may also request premium processing service immediately by filing Form I-907 concurrently. According to USCIS, premium processing of cap-subject petitions “will begin no later than May 20, 2019,” and USCIS will notify the public before premium processing begins.

Important: The H-1B cap-subject petitioner must file a request for premium processing (Form I-907) alongside with the request for a change of status (Form I-129). Otherwise, the petitioner has to wait until premium processing begins to submit their request, which puts the petitioner at the end of the queue.

• Phase two will process all other FY 2020 cap-subject H-1B petitions not filing for a change of status. These petitions may not request premium processing concurrently with their I-129 applications. USCIS will announce separately when premium processing becomes available to these petitioners, which is expected to be in June 2019.

H-1B application decisions can take anywhere from 10-13 months. But for a $1,410, premium processing fee a decision is guaranteed within 15 days.

The unpredicted change to premium processing procedures undermines USCIS’ new H-1B selection process designed to benefit foreign-national U.S. graduates. International students will be most heavily impacted as they will be forced to wait even longer to begin their life and career in America.

The unexpected change that grants immediate premium processing to some but not all H-1B visa cases is causing costly disruptions for many law offices. Cases that have already gone through final review are having to be re-opened and reprocessed with new forms. The cases must then undergo another quality control check and be re-finalized with a different filing address.

Clients of these law offices are also bearing the brunt of the new procedures. For recent graduates who have their H-1B visa petitions selected and have a job lined up, there will be an added layer of tracking and paperwork after submission.

The change has also stoked concern that the delay for premium processing for cap-subject H-1B petitions not filing for change of status will also be accompanied by an increase in Requests for Evidence. If the international student is unable to show that they have maintained nonimmigrant status, they could wind up with a Notice to Appear [the process of initiating deportation proceedings].

Over the past two years in an effort to restrict high-skill talent flow, USCIS has introduced a series of rules and policies that have resulted in more denials and RFEs. It should come as no surprise that USCIS announced these last-minute changes that will more than likely make life even more difficult for international students, H-1B holders and U.S. employers.