On June 7, 2019, USCIS announced that they will resume premium processing for all fiscal year 2020 Cap subject H-1B petitions on June 10. Until that date, USCIS was only allowing Premium Processing for FY 2020 cap-subject H-1B petitions requesting a change of status.
While many employers are celebrating their ability to premium process their cases now, others are scratching their heads as to why we should be thanking USCIS in the first place.
If you look at the USCIS website, processing times for an H-1B can take anywhere from 4.5 months to 14.5 months depending on your jurisdiction. Imagine you have a new hire who cannot start until they have an approved petition. Without premium processing, it could be close to a year from the moment you offer that person a position until they can actually begin working.
Premium Processing began in 2001 as a service provided by INS (now USCIS) which offered 15-day processing on I-129 petition for a premium fee. The Premium Processing fee, originally $1,000 is currently $1,410. Many H-1B employers are more than happy to pay this fee given the ever-increasing processing times for H-1B petitions. However, what was once viewed as a “premium” is now a necessity to effectively run a business in the U.S.
With all the policy memos coming down the pipeline bogging down H-1B petitions, the wait-time for an approval can mean the difference of whether a company can take on new talent. These delays are self-created by an administration determined to frustrate business immigration. The most effective delay tool is the Request for Evidence. We have seen Employers hit with a growing number of Requests for Evidence, some over 15 pages long, asking for unreasonably massive quantities of documentation. In 2018, under the Trump administration, we saw a 77% increase in RFE’s compared to 2017.
Therefore, USCIS is forcing U.S. businesses to pay a premium for a service which the government is obligated to provide under the law.
Some companies are not staying silent. They are taking USCIS to Federal Court, either by filing mandamus actions to compel the USCIS to adjudicate a case or they are suing USCIS under the Administrative Procedures Act. The Administrative Procedures Act (APA) permits a federal judge to review certain decisions made by executive branch agencies, including immigration agencies such as USCIS. To prevail, it must be shown that the agency decision was “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.” Courts have found that the APA’s mandate that agencies must conclude matters presented to them “within a reasonable time” may afford relief for claimants whose applications have been unreasonably delayed 5 U.S.C. § 555(b). See Villa v. DHS, 607 F. Supp. 2d 359, 365 (N.D.N.Y. 2009) (finding that 5 U.S.C. §555(b) (APA) requires USCIS to adjudicate applications within a reasonable time).
U.S. companies are slowly chipping away at Trump’s anti-business-immigration movement with each lawsuit. The moniker of “Premium” is an insult to U.S. companies that are simply trying to find the best talent to improve their businesses efficiently and within the confines of our laws.