USCIS announced today that it will resume its premium processing service for all H-1B petitions that are subject to this year’s H-1B cap.  This news provides much needed relief to employers and foreign nationals, particularly in those situations where an employee is relying on F-1 optional practical training (OPT) cap gap provisions for work authorization. F-1 OPT cap gap work authorization will expire on Sept. 30, 2017, leaving foreign nationals unable to work unless their H-1B petition is approved before Oct. 1, 2017, or they are able to secure alternative work authorization, which is unlikely for most.

Premium processing provides expedited processing for certain employment-based applications and petitions. Under premium processing, USCIS guarantees processing of a case within 15 calendar days or USCIS will refund the premium processing filing fee ($1,225).

Some F-1 OPT students receive extended work authorization beyond the expiration of the employment authorization document (EAD) and status pursuant to the cap gap provision. The cap gap provision extends F-1 status and employment authorization until Sept. 30 for those students whose H-1B cap petition was filed before their F-1 status expired (and were later selected in the annual H-1B cap lottery). For example, if an F-1 OPT student’s status and EAD expired on June 1, 2017, but an H-1B cap petition was filed on their behalf on April 1, 2017 (and later selected in the annual cap lottery), pursuant to the cap gap provision, the student’s ability to remain and work in the United States is extended until Sept. 30, 2017. Work authorization pursuant to the cap gap provision expires on Sept. 30, regardless of whether USCIS has made a decision on the pending H-1B cap petition.

Employers faced with employees whose cap gap work authorization expires on Sept. 30, 2017, must file to upgrade such cases to premium processing to minimize the duration of time that the employee is without work authorization. If an approval on a pending H-1B cap case is not received prior to Sept. 30, the employer should terminate the cap gap employee no later than Sept. 30. The employee may restart employment once an approval is received on the pending H-1B cap petition.

Employers are not required to premium process H-1B cap cases where the employee holds alternative work authorization, such as TN or L-1B status, as the employee may continue to work pursuant to such authorization until a decision is made on their H-1B cap case.

USCIS has issued much higher than normal numbers of requests for evidence (RFE) on H-1B cap cases this year, which has created significant delays on the final adjudication of H-1B cap cases. Though premium processing of H-1B cap cases was not typically required in previous years, given the delays on adjudications this year, which may be tied to the “Buy American, Hire American” executive order signed on April 18, 2017, many employers are being forced to upgrade H-1B cap cases to premium processing this year to avoid extended lapses in work authorization for their H-1B cap gap population.

Given the need for premium processing of H-1B cap cases this year, employers should anticipate additional requests for evidence in response to requests for premium processing.

Failure to premium process cap gap H-1B cases will result in the need to terminate cap gap employees on or before Sept. 30, as well as additional delays in adjudication. At present, it is typically taking at least four to six weeks to receive a decision from USCIS in response to a request for evidence.

In July, USCIS began to accept premium processing requests for certain H-1B cap-exempt employers.  USCIS previously announced that it had resumed premium processing for all H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. USCIS plans to resume premium processing for all other remaining H-1B petitions, as agency workloads permit.

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