Can H1-B Premium Processing result in increased scrutiny, more RFEs?

The answer is “No,” says Houston-based immigration attorney Emily Neumann.

By Emily Neumann

The return of premium processing for all types of H-1B petitions is welcome news. The lack of premium processing for H-1B change of employer petitions has caused many H-1B workers to delay job changes. Although a foreign national in H-1B status is authorized to begin work for a new employer prior to petition approval, the current environment makes this exceedingly risky. During the period of October 1, 2018 to December 31, 2018, USCIS issued Requests for Evidence (RFE) on 60 percent of H-1B petitions.

Two years prior, the RFE rate was less than 30 percent. Further, out of those petitions that received an RFE late last year, 40 percent were eventually denied. If an H-1B worker has already joined the new employer and the change of employer petition is later denied, the worker may be found immediately out of status and, in some cases, could begin to accrue unlawful presence. Now, with the return of premium processing, employers can pay an additional $1,410 in filing fees to receive faster adjudication of change of employer petitions and the H-1B worker can wait until the petition is approved before making the switch.

Allowing premium processing also helps those H-1B workers with urgent travel plans who previously may have been restricted from travel while a petition was pending with USCIS. Further, those filing renewals can have a better chance of receiving the result of the extension prior to the expiration of their current status.

While there is a common perception that premium processing causes a higher level of scrutiny, increases the chances of an RFE being issued, or even increases the likelihood of a denial, I have not found that to be the case. I generally recommend to my employers to file in premium processing whenever possible to avoid the long processing times and the uncertainty that comes with waiting months on end for a final result.  In addition to the faster processing time, premium processing has an added level of customer service, which is beneficial in the event issues arise during the adjudication process.

At the same time, it is unfortunate that employers are forced to seek premium processing because the regular processing times have reached such a critical state. For example, the current processing time for an H-1B change of employer, amendment, or extension with change at the California Service Center is 9.5 to 12.5 months. The extreme vetting taking place causes more harm to legitimate filers rather than reducing fraud or abuse.

It is unclear at this time whether premium processing will be available for the upcoming cap-subject H-1B filing window, which opens on April 1st. During the last two cap seasons, premium processing was unavailable, which caused many petitions to remain pending beyond the requested start date of October 1st. This can be extremely detrimental to F-1 students seeking H-1B status who receive extensions of their practical training period only through September 30th under the “cap-gap” regulations. Employers of these students often experience business disruptions because they must stop work if the H-1B petition is not approved by October 1st.

(Emily Neumann is a respected attorney dealing in immigration and non-immigration matters. She has authored several e-books on business immigration and is a frequent speaker at immigration seminars and conferences. She is a partner at Reddy and Neumann Law Group based in Houston, Texas.)