By: Jagan Mohan Tamirisa
Effective March 20, 2020, Premium Processing has been suspended for ALL types of Form I-129 petitions (H/L/O/R/TN etc.) and I-140 petitions, including H-1B cap petitions. This is a very important development affecting petitioners who use the premium program. The Premium Processing program is an important source of revenue for the USCIS as petitioners paid nearly $545 million in premium processing fees during FY-2019. This is not the first time Premium Processing has been suspended. Premium Processing was suspended – from April 2018 until February 2019 for H-1B Transfers and Amendments, while H-1B extension petitions only were exempt.
Effect of Suspension
If a petitioner filed for Premium Processing before March 20, 2020, and it was accepted, it may be processed in 15-calendar days. In the event it does not, USCIS will refund the $1,440 filing fee. So, this means that there is a possibility that a case that has already been accepted under Premium Processing, prior to March 20, may still not receive premium treatment. It is uncertain as to how long the suspension will last. But just because Premium Processing is not available does not mean petitioners should not submit their case. It should be filed as a regular case.
If a petitioner is facing an emergency, an expedite request can be made with the petition. The petition must demonstrate through documentary evidence that either the company or the petitioner will face severe financial loss if the petition is not expedited. Urgent humanitarian reasons, or compelling government interest can also be established as reasons for the necessity to process the petition faster. These are, however, tough standards to meet and USCIS is known to routinely deny such requests. Under the current crisis, one can imagine how many expedite requests will come forward, making it difficult to distinguish between genuine cases that need to be expedited from those that can be processed as. regular requests.
Proactive steps by Employers
It is recommended that petitioners continue filing their applications on a timely basis. Do not wait or hold filings for a premium announcement even if there is ample time left on your petitions. Expect adjudication delays, especially for H-4 and other applications that require completion of a biometrics appointment. A delay in filing a petition may affect employment authorization for certain nonimmigrants. Presently, H-B/L-1 and certain other nonimmigrants, who have filed their extension petitions on time can work up to 240 days beyond their I-94 expiration date. But this could prove to be insufficient. Unless an exception is made for these categories, the employment must stop after completion of 240days. Thereafter, employees can remain in the U.S. until a final decision is taken on the application. There is no need to terminate the employees, but they should be taken off payroll. A delay in filing can cause uncertainty for those facing issues with maintenance of status – especially those who are in the 60-days grace period and moving back to new employment, and those who fell out of status and are filing Nunc Pro Tunc cases to get back into status ASAP. Further, a delay in filing can affect ability to travel when the situation permits.
A delay in filing can also have an ancillary effect on H-4/L-2 EADs. This is applicable to those who tag H-4/L-2 EAD extension with H-1B/L-1 filings. Presently, those who hold EAD through AOS/I-485 filings, who have filed their extension permits on time, can work up to 180 days beyond the EAD expiration date. These benefits are NOT available for L-2/H-4 EADs. If the EAD expires, the effected applicant must stop work until the EAD is renewed. The solution is to be mindful of petition/I-94/EAD expiration dates, and to file them as early as possible. Extension petitions can be filed within a 180-days window.
Receiving COVID-19 Testing and Preventive Care Does Not Amount to Public Charge
In a rule implemented on February 24, 2020, the USCIS made it clear that nonimmigrants must be self-sufficient, meaning those who are “likely to become a public charge” (i.e., those who receive certain public benefits) will be denied visas if they are overseas, and extensions if they are physically present in the U.S. This rule is also applicable to H-1B/L-1 and other work visa groups. Individuals such as U.S. citizens, refugees, asylees, and other groups are exempt.
Preventive services do not come under public charge. Therefore, any nonimmigrant experiencing COVID-19 symptoms can seek medical treatment, including receiving vaccinations, without fear of being subjected to the public charge rule. Furthermore, if a nonimmigrant is unable to file their application on time due to COVID-19 prevention policies, the foreign national can submit documentary evidence with their application to USCIS and explain that they could not do so due to an extraordinary circumstance beyond their control. Such applications can be considered favorably at time of adjudication.
Please email us at email@example.com for advise on your immigration status which may have been impacted due to COVID-19. We recommend sharing this alert with your contacts who may benefit.