Due to the change in the administration, there has been a preference for filing H1B petitions under the premium route.

The decision of the U.S Citizenship and Immigration Services (USCIS) to temporarily suspend premium processing of all H1B petitions has spurred a lot of speculation about the Donald Trump administration’s plans for the visa programme that allows skilled workers to come into the U.S. temporarily. What does this decision mean? Aparna Dave, Washington-based immigration attorney, explains, She also suggests that panic over possible changes in H-1B triggered a rush for premium processing, clogging up the system.

Is this the first time the USCIS has suspended premium processing?

No. In the past too, the USCIS has suspended premium processing in order to clear backlog in petitions. Premium processing involves a USCIS commitment to respond to a particular petition within 15 days, for an extra fee. That facility is now suspended.

If annual allotment of 85,000 H1B visas is by lottery, what is premium processing and how can there be a backlog? Every year there is a fresh set of applications, right?

The backlog is created due to an increase in the H1B filings, which includes filing an H1B extension (in recent years, the USCIS approves several H1B petitions only for one year rather than three years) or H1B amendment due to changes in work location. These are people who are already present in the U.S. on an H1B status. Premium processing is mostly sought by those who are already in the U.S. on H1B visas.

For new H1B applicants, premium processing is helpful in cases where they are already in the U.S. on a student visa or some other visa. Premium processing allows them to know their status sooner, post-lottery. Regular H1B processing takes six to eight months. In many cases, for those who are already in the U.S., premium processing helps in planning for alternative visa options if they don’t make it in the lottery. For a person applying from abroad for the first time for an H1B visa, premium processing hardly makes any difference.

Why do people who are already in the U.S. on H1B need to approach the USICS for changes? What kind of applications create backlog at the USCIS?

H1B petitions are usually approved for three years. However, in recent years, the USCIS has approved several petitions just for one year. Before the end date on the H1B petition, an extension must be filed. If within the H1B approved period, the employee changes the company, or the work location of the employee changes within the same company, an H1B amendment needs to be filed. Every year, you have more than 85,000 new visas added and the number of total H1B visa holders is constantly increasing and the number of people seeking such amendments is also increasing.

The USCIS said on Friday that there was a surge in premium processing requests. Why?

What has been happening in the last couple of years is that the time taken for regular processing of H1B extensions or amendments is increasing due to an increase in the filing of H1B petitions. Therefore, companies and employees started taking the premium route. An increasing number of premium processing applications further slows down the regular processing; more and more people are paying extra to get the case processed within 15 days, diverting USICS manpower. The USICS is also required to process extensions within 240 days.

For instance, when an H1B extension is filed, an employee can work in the U.S. based on the receipt notice but only up to 240 days. USCIS has said on Friday that the suspension of premium processing has two objectives: “a) Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; b) prioritise adjudication of H-1B extension of status cases that are nearing the 240 day mark.”

Does the suspension of premium processing have anything to do with the Trump administration coming into power?

Suspension is an internal decision of the USCIS and it does not signal any policy change. However, due to the change in the administration there has been a preference for filing H1B petitions under the premium route, due to a fear that H1B policy may change in the future. In the last two-three months, there has been a dramatic increase in the filing for premium processing.

Suppose that an H1B visa holder, while waiting for an extension or amendment, lands in a situation that requires her to travel out of the U.S. Will she be able to do that, now that premium processing is suspended?

Yes. If an H1B visa holder has to travel urgently on humanitarian grounds, or any demonstrable urgency that includes significant losses to the company if she cannot travel, the processing can be expedited. But the H1B employer has to prove her eligibility for expedition besides paying the premium processing fee.