24 March 2018

Impact of Premium Processing Suspension on OPT Students Selected in the H-1B Lottery

On March 20th, USCIS announced that Premium Processing will be suspended for all Cap-Subject H-1B petitions filed in the lottery for Fiscal Year 2019 (FY2019). This is expected to last until September 10, 2018.  Premium Processing allows for adjudication of a petition within 15 days of receipt of Form I-907 and associated fees as opposed to normal processing times that can exceed 6 months. If a Request for Evidence (RFE) is received, USCIS will issue a decision within 15 days from receipt of the employer’s RFE response.

The suspension of premium processing can have a negative impact on F-1 Optional Practical Training (OPT)* students whose petitions are selected in the lottery and whose OPT will expire prior to October 1st. Here’s why:

An employer may file a Cap-Subject H-1B petition beginning April 1st, for H-1B employment to begin no earlier than October 1st. Therefore, if your H-1B petition is selected in the upcoming lottery and your OPT expires after April, but before October, a gap is created between the end of your F-1 status and the start of your H-1B status.

Current regulations have cured this issue for OPT students who request a change of status from F-1 to H-1B in the cap. Specifically, regulations allow OPT students with pending or approved cap petitions to fill-in the “cap-gap” by automatically extending OPT work authorization through September 30th.  This allows the student to work beyond the expiration of their OPT work authorization. Ideally, the change of status from F-1 to H-1B will occur on October 1st, with no disruption in employment.

Of course, things don’t always go as planned. The suspension of premium processing until September 10th coupled with longer processing times, can create a headache for OPT students who are working based on the cap-gap extension. If your H-1B petition is not approved by October 1st, you will have to stop working until your petition is approved. Any disruption in employment is difficult on both the employee and the employer.

Although your petition can be upgraded to premium processing as soon as the suspension is lifted, an RFE may still be issued and you must account for preparation and response time. Given the increased scrutiny on H-1B petitions, we do expect an influx of RFEs for FY2019 cap cases with new issues to tackle. Our hope is that the premium processing suspension will be lifted prior to September 10th. This would reduce the potential for a gap in work authorization for OPT students after September 30th.

*Those eligible for Optional Practical Training (OPT) are allowed temporary employment that is directly related to the F-1 student’s major area of study. Students can receive up to 12 months of OPT work authorization after completing their academic program. Also, if your degree is in certain science, technology, engineering and math (STEM) fields, you are eligible to receive a 24-month extension of your OPT work authorization.

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Posted March 24, 2018 by KrystalAlanis in category "H-1B