USCIS Temporarily Suspends Premium Processing for All H-1B Petitions

By: ISSS

As of Friday, March 20, United States Citizenship and Immigration Services (USCIS) has suspended Premium Processing for all H-1B petitions. This temporary suspension of premium processing service is being implemented due to the COVID-19 epidemic. As many of you know, premium processing is a way to expedite USCIS processing of petitions and results in an adjudication of 15 days or less. Without premium processing, USCIS states that current adjudications of H-1B petitions are currently taking 2-4 months. In practice, we have seen processing times average much longer than this estimate. We would like to offer some guidance as to how this will affect work authorization for foreign national employees at Penn.

Does this affect H-1B applications already filed with USCIS?

If an H-1B petition has already been submitted to USCIS with a premium processing request, the agency will continue adjudication with premium processing. New H-1B petitions will not be able to be submitted with premium processing requests for the time being.

How does this impact H-1B petitions moving forward?

The impact depends on the type of petition Penn is filing for the employee

Extension of Stay and Amendment Petitions

If the individual is already working for Penn in H-1B status and Penn timely files for an extension, the employees work authorization will be automatically extended. For extension of stay with no changes in employment the employee will receive an automatic 240 day extension of work authorization from the date their status expires. For amended petitions, the individual may work in the amended position as long as the amendment is pending. 

• Scenario 1: Jim is working as a Research Associate in H-1B status. His current H-1B expires on May 1, 2020. Penn files an extension of status for the Research Associate position on March 24 seeking to extend his H-1B until 2023. Although the H-1B is not approved on May 1, Jim may continue working for 240 days in the Research Associate position. Once the H-1B petition is approved, Jim may continue working in that position until his new ending validity date in 2023.
• Scenario 2: Esther is currently working at Penn on H-1B status as a Research Associate. Her H-1B status expires on May 1, 2020. She is promoted to Senior Research investigator starting April 1, 2020. Penn files and amended H-1B petition for the Senior Research Investigator position and receives a receipt notice. Esther can begin working as a Senior Research Investigator on April 1, 2020 and, although her H-1B amendment petition is not approved on May 1, 2020, she can continue working as a Senior Research Investigator until a decision is made on the amended petition.

Change of Status Petitions

For individuals in another non-immigrant status (ex. current F-1 OPT employees, J-1 exchange visitors, or E-3 Australian specialty occupation) they may continue to work until their EAD card expiry date or until their current program end date on their DS-2019. If their program ends or the EAD card expires and the H-1B change of status petition has not been approved, they may stay in the US, but must cease working until the H-1B petition is approved. Note that there may be a gap in employment before the H-1B is approved.

• Scenario 3: Liz is conducting research as a J-1 visiting scholar. Her J-1 program end date is May 1, 2020. Penn filed a change of status H-1B petition for Liz with a May 2, 2020 start date. On May 2, the H-1B petition is still pending. Liz may remain in the United States but must stop conducting research and may not work until her H-1B petition is approved.
  • If Liz has not used all of her available J-1 program time (5 years for Research Scholars) then the department should consider extending her J-1 program so that there is no gap in employment authorization.

Change of Employer or “Portability” Petitions

For individuals in H-1B status at another institution who are coming to work at Penn can begin working upon receipt of the petition by USCIS. They may continue to work at Penn as long as Penn’s H-1B petition is pending.

• Scenarion 4: Page is working at NYU on an approved H-1B petition. Penn wishes to hire page as a Research Associate, so Penn files a “change of employer” H-1B petition (sometimes referred to as an H-1B “transfer”) with a June 1 start date. Although the change of employer petition has not been approved yet, Page can begin working at Penn on June 1 because Penn has received the receipt notice from USCIS. Page may continue working for Penn as long as Penn’s petition is pending. If the petition is approved, Page may continue working until his new H-1B validity period expires.

“Upgrading” to Premium Processing at a later time

Note that once USCIS resumes accepting premium processing requests, H-1B petitions can be “upgraded” at any time. We can submit a request for a pending H-1B petition to change the petition to premium processing even after it has already been submitted. We will notify departments once USCIS allows premium processing again.

ISSS will continue to update the departments when as new guidance comes in. We thank you for your continued cooperation during these uncertain times.