Thursday, September 8, 2016

Understanding when to use premium processing for your H-1B petition

Certain petitions that a petitioner files with United States Citizenship and Immigration Services (USCIS), including for H-1B, can receive premium processing. For an additional (at this writing) fee of $1225, via form I-907, a requester (such as a petitioner or attorney) can ask for a faster decision on the petition, possibly within 15 calendar days. This decision period is significantly faster than the normal H-1B period of two to three months.

Here are some reasons that premium processing might be a good choice.

1.       Begin authorized employment sooner

Let’s say that you and an employer are ready for you to start work in an H-1B job, but the only thing that holds you up is the approval of the petition. For example, consider John, who is finishing his F-1 program of study on June 15. He has found a job and his H-1B petition is exempt from the cap. That is, this petition is not subject to the 65,000 per year H-1B approval limit. John’s employer IS NOT required to file the petition only within the first five business days of April. John and his employer DO NOT have to worry about surviving any lottery. Most importantly, should John’s petition be approved, he NEED NOT wait until October 1 to begin work.

In this case, John’s employer could file a petition on (for example) May 30, request premium processing and ask for a start date of (for example) June 16. Should John be approved, then he could start working on June 16. Without a request for premium processing, John might not be able to work until perhaps the middle or end of August.

Note that this reason does not apply if your petition is subject to the cap, and if, at the time of filing, the cap is full. In such a case, your employer should have filed during the first five business days of April. However, assuming you are approved, the earliest you can begin working is October 1, because only on that date are new H-1B approvals available. In other words, receiving an approval notice on (for example) April 25 DOES NOT permit you to start working on that date. However, please see below for other reasons, in this case, for selecting premium processing.

2.       Reduce the risk of unauthorized employment

In many cases, a person who seeks H-1B status must wait for approval before starting work. However, in one situation, a person need not wait for approval. This situation is called “H-1B portability,” and it refers to a person who changes H-1B employers under certain conditions. If such a person changes jobs from a cap-subject employer to another employer (and of course, the second employer would need to file a petition for the person), then the person need not wait for the petition of the second employer to be approved before starting work.  Rather, the person need only wait until after the second employer has filed the petition, and then the person can begin working for the second employer. In other words, the portability provision allows an employee to begin working prior to an H-1B approval.

While this feature may sound attractive, in terms of saving time, please remember what the Bible says: “Everything is permissible for me, but not everything is beneficial.” That is, simply because a person CAN do something doesn’t necessarily mean that the person SHOULD do it. In this particular case, working for the second employer prior to getting approval for that employer, though lawful, involves the risk that the petition could be denied. In such a case, the person will have been working without authorization.

For this reason, I suggest a more conservative approach: the second employer files the H-1B petition, and at the same time requests premium processing. In the meantime, the person stays with the first employer. Then, once the second petition is approved, presumably in 15 days (and only if approval occurs), the person leaves the first employer and joins the second. This approach involves a longer wait than if the person had started work immediately, but in my view, it reduces risk.

3.       Peace of mind and reduced uncertainty

Some people might want to request premium processing even if a faster petition approval gives them no earlier start date for employment. This situation is a common one, in which an employer files a cap-subject petition in the first five business days of April. If this petition is approved, and if (as has been the case in the past few years) the cap already is full during the filing period, then the person can work only on October 1.

Premium processing DOES NOT advance the start date for authorized H-1B work in this situation. In other words, the start date still must be October 1. Nonetheless, a person simply might want to have peace of mind and reduced stress by knowing, more quickly, the result of the decision. That is, such a person would want to know sooner (perhaps mid-May with premium processing) rather than later (perhaps June or July, with regular processing).

Choosing premium processing is your decision. Unlike other H-1B attorney and filing fees, I believe that it is OK for the employee to pay the premium processing filing fee. Premium processing does not require either the employer to sign the I-907, though it can if it wants. Rather, an attorney is able to submit the request.

 If you do choose premium processing, be sure of your reason, and be aware of what it does and does not allow you to do in your particular case. Also, please be aware that according to USCIS, choosing premium processing does not give your petition any additional chance of selection in the lottery.

The above information does not constitute legal advice and does not form an attorney-client relationship.