Premium processing of H-1B visa petitions was suspended for up to six months, US Citizenship and Immigration Services [1] announced Friday. Premium processing allows for visas to be processed within 15 calendar days rather than months for H-1Bs, which are used by companies, including staffing firms, to bring in highly skilled individuals such as IT workers. However, there are concerns the move adds uncertainty to the visa situation and that it may be a first step to other actions.
“Anything that removes tools that make the processing of employment authorization smoother and faster, is counterproductive to organizations that are in the business of facilitating the acquisition of human resources,” wrote Jose Olivieri, partner with law firm Michael Best & Friedrich. “Suspending premium processing slows down the process of people having certainty regarding their employment authorization and creates hesitation and perhaps even the unwillingness of people to change jobs.”
TechServe Alliance CEO Mark Roberts said the move appears innocuous on the surface, but it could be the first step in curtailing access to H-1Bs by staffing firms and, by extension, their clients.
“We think the industry in terms of continued access to H-1Bs is certainly at risk,” Roberts said.
The move has already created uncertainty and it could impact how freely staffing firms are able to move consultants, he said. For example, in order for a staffing firm to reassign an H-1B visa holder from one geographic area to another, it must file a new petition. Now H-1B workers may be less willing to relocate because it would take months rather than weeks to find out if the petition is approved. If it’s not approved, they would be out of status.
It also comes amid an atmosphere and rhetoric in Washington where some are critical of immigration. Roberts said there is concern that focus could turn to H-1B programs in wake of the new immigration order released by the administration.
Without the ability to bring in adequate numbers of highly skilled workers on H-1B visas, it’s likely some work will be moved entirely overseas, Roberts said. And H-1B workers typically make up a small part of teams, with the rest being US citizens and green card holders, who could be out of work if the project goes abroad.
USCIS reported the suspension will cut overall H-1B processing times and enable the agency to:
- 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; and
- Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.
The Hindu newspaper reports [2] an immigration attorney suggested the surge in premium processing requests may have come from people concerned over possible changes to the H-1B visa process.
Also, the suspension comes a short time before April 3, when the filing period begins for new H-1B visas for the upcoming fiscal year beginning Oct. 1. For the past few years, there have been more visas requested than are available under the cap of 85,000. The government has used a lottery to issues the visas.
Roberts said there’s also been talk of prioritizing how visas are issued — such as favoring companies that pay the highest salaries. The concern is that while staffing firms pay well, not every position supplied is a top position paying the highest salary. Such a move could favor the largest technology companies.
“Fundamentally, we don’t have a problem with looking at how the H-1B process can be approved,” Roberts said. The concern is over any policies that can discriminate against the staffing industry.
Sen. Chuck Grassley, R-Iowa, and Sen. Dick Durbin, D-Ill., introduced another bill [3] earlier this year to get tough on firms using H-1B visa holders. Among other things, the bill, S. 180, would give priority for workers with advanced degrees in science, technology, engineering or mathematics from US universities and it calls for the US Department of Labor to conduct annual audits of companies with more than 100 employees of which 15% or more are nonimmigrant H-1B visa holders.
Separately, Durbin on Friday also sent a letter to President Donald Trump [4] raising concern that the president has not acted quickly enough to curb H-1B abuse.
“As one step towards keeping your campaign promise, you should endorse bipartisan legislation to reform the H-1B visa program that I have sponsored for more than a decade with Senator Chuck Grassley,” Durbin wrote. “Our legislation, which was cosponsored by your Attorney General, then-Senator Jeff Sessions, would end the use of the H-1B visa for outsourcing and require employers to hire American workers first, no exceptions.”