Without premium processing, your application must plod through the usual H-1B processing queue, which can take nearly one year! Last year, the USCIS tried to clear the backlog by moving H-1B extension applications to the Nebraska Service Center. Apparently, it has not worked. And frustrated employers and applicants often resort to premium processing so they can get decision on their applications within a reasonable time.
So of course, many employers and employees are rightfully concerned and want to know what this news means for the employee's ability to start or continue working.
As usual, the answer depends upon the circumstances as I describe here.
H-1B Extension of Stay in the U.S. with the Same Employer
- If the H-1B petition for extension is submitted on or before the current H-1B expires, the H-1B employee can continue working for up to 240 days (8 months) after the current visa status expires.
- The H-1B petition receipt notice serves as proof of work eligibility extension and status.
- If the H-1B petition is still undecided at the 240 day mark, the employee may remain in the U.S. but must stop work until the petition is approved.
H-1B Change of Employer
- If the H-1B petition for the new employment is submitted on or before termination of the current H-1B employment (or within 60 days of the termination of the current H-1B employment in some circumstances), the H-1B employee can start work with the new employer once the new petition is filed with the USCIS. This is the “portability rule.”
- The portability rule does NOT apply if you are a cap-exempt employee applying for a cap H-1B visa.
- The H-1B petition receipt notice serves as proof of work eligibility until the new H-1B petition is decided.
- The employee can continue working while the H-1B petition is pending. If the H-1B petition is not approved, the employee must stop working and is no longer has legal status.
Change of visa status to H-1B visa status
- If the H-1B petition is submitted before the employee's status expires, then the employee may remain in the U.S. but cannot start work until the H-1B is approved. For example, J-1 physicians who have an approved waiver of the two-year home residency requirement can remain in the U.S. if the H-1B petition is filed before their J-1 grace period expires. However, they can't work and provide needed medical services until the H-1B petition is approved.
- If an F-1 student has an OPT employment authorization document (EAD) and his application is picked in the H-1B cap lottery, he may continue working until his OPT expires or until September 30, 2017, whichever is later. Afterwards, he can remain in the U.S. to wait for the H-1B decision but cannot work.
- If the employee leaves the U.S. while the change of status application is processing, he or she must wait for the H-1B approval and obtain a “visa stamp” from the U.S. embassy before starting work.
- The employer can ask for expedite of the application if it meets USCIS expedite criteria. Few would meet this expedite criteria and approval of the expedite request is entirely discretionary.
Even those H-1B employees who can work while their applications are pending could suffer from the suspension of the premium processing option because many states require an H-1B approval before renewing driver's licenses or professional licenses.
Unless the USCIS drastically reduces the currently unacceptable processing times for H-1B applications, the loss of the H-1B premium processing option, albeit temporary, can be a devastating blow for many H–1B employers and employees.
If you have a pending H-1B petition, you should consider request premium processing before April 3. If you plan to apply for a renewal or change of employer before April 3, you should consider the premium processing option.
I hope this article helps you understand basic immigration requirements, but please don't consider it as legal advice or legal opinion about your specific circumstances. Immigration rules are complex so contact a qualified immigration attorney to determine your options.
For legal advice and guidance for your unique situation, you are invited to schedule an immigration strategy session with me.