-
Aliens who are filing H-1B petitions have the option of requesting premium processing from USCIS.
This service, which costs an extra $1,000, guarantees that an H-1B petition will be approved, denied, or issued a request for more evidence within 15 calendar days after USCIS receives the petition. If USCIS fails to provide a decision within that amount of time, then the $1,000 fee is refunded. Petitioners can request it by including a Form I-907, Request for Premium Processing Service, with their applications.
In addition to easing H-1B applicants’ nerves by getting them their results faster, premium processing gives applicants easy access to an immigration officer, either by phone or by e-mail. This contact can be helpful in the event of a lost document or another administrative problem. Furthermore, premium-processing applicants can generally receive receipt and approval notices via e mail rather than having to wait for paper versions to arrive.
Many aliens who are applying for H-1B visas wonder if premium processing is a valuable option for them. The answer to that question depends on a few different factors, including most importantly whether the relevant job offer is cap-subject or cap-exempt.
Cap-Exempt Applications
Certain organizations are exempt from the H-1B quota: namely, institutions of higher education and related or affiliated non-profit entities; nonprofit research organizations; and governmental research organizations.
Since aliens with job offers from these organizations are exempt from the strict H-1B quota—which opens up every April and, in 2007, was filled within a single day—they have much more flexibility than other aliens in the timing of their H-1B petitions. Essentially, they can submit their petitions at any time of year. Furthermore, if their petitions are approved, they do not have to wait for the beginning of the next fiscal year (generally in October) to begin working.
This flexibility in timing means that premium processing might be a good option for cap-exempt H-1B applicants who, for whatever reason, need to obtain the results of their petitions as quickly as possible. (This also applies to H-1B extension applicants and most H-1B transfer applicants,* who have already been counted under the H-1B quota.)
For example, one alien might be facing an expiration of status in coming months and would thus need to switch to a new status as quickly as possible. Premium processing would allow him or her to obtain H-1B status more quickly than regular processing would.
Another alien might need to obtain his or her results before traveling outside the country. If the alien can get the result before he/she departures, he/she can avoid unnecessary trouble. An applicant is not eligible to change immigration status or get an extension if USCIS discovers he/she is out of the US. The approval of the application before departure will reduce this risk.
In addition, an alien might be planning to work on a time-sensitive project, such as a study whose funding will soon expire. Again, premium processing would allow that alien to avoid changing travel plans or begin working sooner than regular processing would.
If timing is not an issue, however, then premium processing is probably not as important. For example, an alien who is just beginning to work under OPT status wouldn’t need a quick approval, since he or she has an entire year before OPT status expires. For this alien, premium processing doesn’t help very much.
Cap-Subject Applications
Timing for cap-subject applications is much more rigid than for cap-exempt applications. Since there is an annual quota of 65,000 H-1B visas, and the demand far exceeds the supply, it is essential that cap-subject H-1B applicants submit their petitions early to get a quota. However, even if an H-1B applicant’s petition is approved, he or she cannot begin working until the beginning of the new fiscal year (this year, October 1).
Last year, on the first day of accepting H-1B petitions, USCIS received more than 65,000 cap-subject H-1B petitions. They used a lottery to determine which would be selected for processing.
Despite rumors to the contrary, premium processing does not affect a cap-subject applicant’s chances of being selected for processing. In fact, last year, USCIS delayed the 15-day period for premium processing until after the lottery had been conducted, so it was completely irrelevant until the quota issue had already been dealt with.
Furthermore, if a cap-subject, premium-processing application is selected for processing, then the alien should find out within 15 days of that selection whether his or her petition has been approved. However, he or she still cannot begin working until October 1, regardless of whether premium processing was chosen. Under this situation, the premium service doesn’t help the applicant very much.
Premium processing might also be useful if for some reason, an alien needs to know as quickly as possible whether his or her petition has been approved. For example, an alien might need to know because he or she is debating another job opportunity (perhaps for a cap-exempt position or an employer in another country) or needs to make some other type of time-sensitive decision.
Upgrading to Premium Processing
Aliens who have already submitted their H-1B petitions can still upgrade to premium processing if they have not yet received their results.
This option can be particularly useful for cap-subject applicants, who can wait to upgrade to premium processing until after they know whether they have been selected for processing through the lottery. Then, if they are selected, they can upgrade to premium processing and get their results within 15 days.
Other applicants can take advantage of this option, too. For example, a cap-exempt alien might upgrade to premium processing if that alien’s plans change such that he or she needs the results more quickly, or if his or her case is experiencing substantial delays.
A Situation in Which Premium Processing Can Hurt
Most H-1B transfer applicants do not need to be selected for processing under the H-1B quota. However, an exception to this rule is H-1B workers who are transferring from a cap-exempt job to a cap-subject job. In this case, the H-1B applicant has not been counted under the quota in the past, but the alien’s new employer is cap-subject—and therefore, that alien must apply for a spot under the H-1B quota for that fiscal year.
The portability rule states that H-1B transfer applicants can begin working for their new employers while their applications are pending. Most transfer applicants can continue working for their new employers once their applications are approved as well, since their new H-1B visas go into effect immediately.
However, the circumstances are different for H-1B transfer applicants who are switching from cap-exempt to cap-subject jobs. If their applications are approved, their visas will not go into effect until the beginning of the new fiscal year. Therefore, it’s possible that there will be a gap between when their applications are approved and when their new visas go into effect, during which they will have to stop working for their employers and possibly leave the country.
In this case, it is advantageous for an alien’s petition to be pending at least until October 1. Premium processing would make this impossible and is therefore disadvantageous to an alien in this situation.
Regardless of H-1B Cap-Subject Status
Some people just don’t like to deal with possible delays in the processing of their H-1B petitions. For them, the premium service could a good option, regardless of whether they are subject to the H-1B cap. For example, if a job is extremely important to an alien, and he or she cannot risk any chance of the petition not being approved before October 1, 2008, then premium-processing service may secure the applicant’s plans to start working on October 1.
Overall, the decision about whether or not to use premium service involves a tradeoff between the additional $1,000 expense, and the convenience and certainty guaranteed by the premium service. If the expense is not a concern, we would suggest taking advantage of premium processing. Otherwise, aliens need to make this decision at their own discretion.
*For an exception, see “A Situation in Which Premium Processing Can Hurt” later in this article.