Feb 17, 2016

Significant USCIS Processing Delays Causing Concern and Harm to Employers and Their H-1B Workers

Processing of H-1B extensions with the United States Citizenship and Immigration Service (USCIS) continue to be extraordinary slow, at both the Vermont and California Service Centers.  The backlogs are causing significant hardships for U.S. employers and their H-1B employees in terms of continued employment authorizations concerns, ability to travel, and issues with driver’s license renewals.

Typical processing times for H-1B extensions historically range from two to four months.  Currently, though, it is not unusual to see petitions still pending after eight months from the date of filing.  This is worrisome and significant.  Under immigration regulations, employment authorization for beneficiaries of a timely filed H-1B extension is automatically granted for 240 days beyond the prior period of stay.  In the past, the need to utilize the 240-day rule has been rare.   Now with processing times exceeding eight months, the concern and potential ramifications are real.

Technically, an H-1B worker whose extension petition remains pending must stop working on the 241st day after the expiration date of the current H-1B petition.  So for example, the employer of an H-1B worker whose current period of stay expires on September 30, 2015 files an H-1B extension petition for the employee on August 1, 2015 (within the allowed six month renewal window) with the USCIS Vermont Service Center (VSC).  Beginning October 1, 2015, the employee is authorized to continue working, but only until May 28, 2016, pursuant to the 240-day rule.  On May 29, if the petition has not yet been adjudicated, the employee must stop working until it has been processed and approved.

Looking at the last couple of Processing Time Reports from the VSC, the processing dates for H-1B extensions advanced during the month of November 2015, from June 1 to June 8, 2015, and during the month of December 2015, from June 8 to June 15, 2015.  So in two full months, the VSC was only able to process two weeks of H-1B extension petitions.  Looking at the Processing Time Reports from the California Service Center, the rate is actually a bit slower.

At that rate, our August 1, 2015 filing will not be adjudicated until sometime in July 2016.  This leaves our employee unavailable to work for a month or more.  Moreover, the employee, depending on the State within which they reside, may not be able to renew their driver’s license.  Additionally, they haven’t been able to travel internationally since October 1, 2015.

When repeatedly confronted by the American Immigration Lawyers Association on this issue over the past several months, the response of USCIS is that they are aware of the problem and are working to resolve it.  They have not made much progress as the above mentioned reports indicate, and with the April 1, 2016 onslaught of new H-1B petitions coming in just a few weeks, there is not much optimism that they will be able to resolve it in any meaningful way anytime soon.

So what does this mean for employers and H-1B workers?  First, it is important to submit H-1B extension petitions as early as possible.  File them when the six month window opens.  Do not wait until the last month, or two or three even, before the H-1B worker’s period of stay expires.

Next, consider filing H-1B extensions under premium processing initially, or upgrading pending petitions.  This is an unfortunate and regrettable by-product of USCIS’s inability to process these petitions efficiently.  Employers and their H-1B workers are feeling pressured to pay USCIS, what should be an unnecessary, additional fee of $1,225 just to get their petitions adjudicated timely.  Premium processing upgrades are on the rise, especially for petitions that have been pending for six months or more.  As the number of premium processing requests increase, the pressure to meet the 15 day processing requirement increases, and we seemingly experience an increase in the numbers of Requests for Evidence issued as USCIS seeks to relieve some of the pressure on them.

Finally, employers should consider beginning the employment-based permanent residence process as early as possible for those H-1B workers who have become integral to their businesses to better ensure their services and expertise will be available without interruption in the near- and long-term.

To learn more, or if you have any questions about the issues discussed in this alert, please contact your immigration counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.    

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