USCIS Phasing in New Two-Tiered Premium Processing Procedure and H-1B Cap Selection Update

March 26, 2019

On March 19, USCIS made a surprise announcement - it will be phasing in a new two-tiered premium processing procedure and establishing a new H-1B data hub on its website.

On April 1, USCIS will commence accepting cap-subject H-1B petition filings for employment start dates effective October 1, 2019 - the start date of the 2020 fiscal year. Recently, USCIS suspended premium processing for all H-1B cap cases. It has slowly resumed premium processing for H-1B filings as its resources permit.

This year, USCIS will implement a two-tiered approach to all requests for H-1B premium processing during the H-1B cap season filing season.

  • Tier one: Only H-1B filings with change of status requests (i.e. TN to H-1B, F-1 to H-1B) may be premium processed under this year's cap filings. USCIS will begin premium processing these petitions no later than May 20, 2019, and will notify the public before premium processing begins.
  • Tier two: USCIS stated that the balance of H-1B cap filings may be premium processed at a later date, but not before June 2019. USCIS has advised that premium processing requests for these petitions should not be filed concurrently with the initial H-1B petitions on April 1. Petitioners would be required to wait until the USCIS announcement allowing for petitions in this category to request premium processing.

USCIS has also announced that a new H-1B employer data hub will be introduced on its website on April 1. The agency stated that its implementation of the hub stems from its effort to increase transparency in the H-1B program by allowing the public to search for H-1B petitions by fiscal year, industry codes, company names, cities, states and zip codes. This newly implemented site will also give the public the ability to calculate approval and denial rates and to review, which employers are utilizing the H-1B program and how frequently.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require specialized knowledge and require, at minimum, a bachelor's degree to perform the duties of the position offered. In its announcement, USCIS claims that this new two-tiered approach to premium processing represents, "simple, smart changes to make the H-1B program work better." For clients filing premium processing requests with USCIS, the guarantee that a case will be adjudicated within a finite time period - 15 calendar days from receipt of the case - provides both the employer and foreign national some assurance regarding timing and reduces anxiety regarding the visa process.

H-1B Cap Selection

As advised in our recent alert, USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, including those eligible for the advanced master's degree exemption, reversing the order that H-1B cap cases are selected with the intention to comply with the President's "Buy American, Hire American" executive order requiring USCIS to protect U.S. workers.

In addition, USCIS believes that the change in order of selection will increase the number of petitions selected for beneficiaries with a master's degree or higher from U.S. institutions.

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