Time Is Money

By Jennifer Cory

On Aug. 28, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it is extending and expanding suspension of its premium processing service for cap-subject H-1B petitions as well as all H-1B petitions filed at the California and Vermont Service Centers. The original suspension applied only to cap-subject H-1B petitions and was set to expire on Sept. 11, 2018. The suspension is now set to expire on Feb. 19, 2019.

 So what’s the big deal? Well, for starters, employers will be unable to request premium processing for H-1B change of employer or amended petitions for a change in job or location. This is particularly problematic for those H-1B workers who are hesitant to change employers before having an approval in place or for those who must travel internationally and require a petition approval for visa issuance. With regular processing times averaging five (5) to seven (7) months, H-1B workers are in a Catch-22. They want the security of an approval before moving to a new employer, but it is impractical to think that a new employer will be able to keep a position open for that length of time. To add insult to injury, USCIS only provided two weeks’ notice concerning the extended and expanded suspension. The announcement afforded little time for employers to file or to convert a case to premium processing before the deadline.

USCIS claims that the extended and expanded suspension is needed to allow it to process long-pending petitions, to be responsive to petitions with time-sensitive start dates, and to prioritize adjudication of those extensions of stay nearing the 240-day mark. However, some would argue that the latest announcement, combined with an Oct. 1, 2018 increase to the premium processing fee from $1,225 to $1,410, is part of the Trump administration’s continuing efforts to limit legal immigration by making the process longer, more costly, and less predictable for employers. It also raises the specter of further extensions or expansions to the suspension to include other visa categories, or potentially the elimination of premium processing altogether.

Despite these challenges, the H-1B visa remains a critical tool for employers attempting to fill gaps in and complement the U.S. workforce. As reflected by public disclosure data available on the Department of Labor’s (DOL) website, employers rely upon H-1B workers to fill STEM-related and professional occupations facing labor shortages.

DOL Bureau of Labor Statistics data indicates unemployment in professional and related occupations has dropped from 3.3 percent as of July 2017 to 2.8 percent as of July 2018. These figures support the fact that more than enough work exists to hire American as well as foreign talent. It is time to realize that employers’ ability to hire and retain foreign talent is essential to the nation’s economy, particularly in light of growing labor shortages.