Tag Archive for: Premium Processing

Cyrus Mehta

Requesting Premium Processing on a Downgraded I-140 Petition  

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By Cyrus D. Mehta and Kaitlyn Box*

In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card backlogs for years to file I-485 adjustment of status applications. Since the EB-3 Filing Date for India significantly overtook the EB-2 Filing Date, some beneficiaries approved EB-2 petition opted to “downgrade” by filing a new I-140 under EB-3. Generally, beneficiaries may still rely on the original Labor Certification when filing a downgraded I-140 and retain the priority date of the EB-2 petition, unless the job has drastically changed.

In previous blogs, we have discussed the nuances of filing a downgrade petition, and addressed some common questions that arise in this situation. One frequent source of questions is whether Premium Processing is available for downgrade petitions given that these I-140 petitions filed since October 2020 are still pending and have yet to be approved. Generally, USCIS will  not accept a case for Premium Processing unless it is filed with an original Labor Certification. Thus, beneficiaries whose Labor Certifications were filed with the original EB-2 petition likely cannot file a downgrade I-140 together with a Premium Processing request. Although USCIS might, in rare instances, accept a Premium Processing request made with an I-140 downgrade petition, it is more likely that the Premium request, or even the entire petition, will be rejected.

A strategy more likely to meet with success is filing the downgrade I-140 via regular processing, waiting USCIS to issue a receipt notice, and then request Premium Processing of the pending I-140. USCIS may still reject the Premium Processing request if it cannot match the pending I-140 to the previous file or retrieve the original Labor Certification. Even in the case of a rejection, however, the pending I-140 will be safe and subsequent Premium Processing requests can be filed, if desired. There are an increased number of Premium Processing requests from beneficiaries of downgraded I-140 petitions given that the EB-3 India Final Action Date has rapidly advanced. Under the July 2021 State Department Visa Bulletin, the EB-3 India Final Action Date is January 1, 2013. If the I-140 petition is approved when the Final Action Date is current for the I-140 petition, the beneficiary and family members can hope to have their I-485 applications approved although the USCIS has been approving them at a snail’s pace and may alarmingly not be able to use up all EB visas for this fiscal year. It should also be noted that the swifter approval of the I-140 petition does not speed up the processing of the applications for employment authorization or advance parole when the I-485 application remains pending.

Recently, however, we have seen some requests to upgrade I-140s to Premium Processing being repeatedly rejected on the ground that an original Labor Certification was no provided, despite other, similar Premium Processing requests being accepted. In an email inquiry placed to the USCIS Premium Processing address in response to one such case, our firm received a helpful response. An Immigration Services Officer  advised that Petitioners resubmit rejected Premium Processing requests and indicate on a brightly colored sheet of paper that USCIS has the original labor certification.  A more guaranteed method, according to the USCIS response, is to submit a copy of the original Labor Certification. Submissions lacking at least one of these documents are vulnerable to immediate rejection since the reviewing officer will not see a Labor Certification included. Although this was not part of the guidance we received, it would also be advisable to indicate the receipt number of the prior approved EB-2 petition which contains the original Labor Certification, and direct the USCIS to look for it in that petition.

Even if the Premium Processing request is accepted, there is always a risk that the USCIS might issue a Request for Evidence (RFE) even if the prior I-140 under EB-2 was approved. Note, though, that such an RFE could also be issued even if there is no request for Premium Processing, although there might be an incentive to issue the RFE if the officer cannot complete the processing within the mandated 15 days. Although RFEs have been seldom, the most common reason for an RFE is to request submission of evidence that the employer still has the ability to pay the proffered wage from the establishment of the priority date until the present, and up to the point of time that the beneficiary receives permanent residency.  If the employer’s current tax returns show losses and the beneficiary is not being paid the proffered wage,  Premium Processing should not be considered, and the I-140 can continue to remain pending,  until the employer is able to potentially overcome such an RFE.  Another reason for an RFE is that the prior SOC code that was designated at the time of the granting of the Labor Certification does not match with the SOC code that was indicated in the downgrade I-140 petition. This is not a valid basis for the USCIS to issue an RFE as the SOC code available for the occupation at that time has become obsolete. For instance, SOC Code 15-1031 for Computer Software Engineers, Applications is no longer in existence. It has now changed to SOC Code 15-1132 for Software Developers, which has again most recently changed to SOC Code 15-1252. This sort of RFE can be more easily overcome.

All of these issues should be carefully considered when requesting Premium Processing of a downgrade I-140 petition. Despite the issues that can arise when making a Premium Processing request of this kind, petitioners can help prevent rejections by following USCIS’ guidance and including a highly visible reference to the original Labor Certification, or a copy of the Labor Certification itself with the request. Submitting timely and thorough responses to any RFEs too helps to ensure that the petition will ultimately be successful.

(This blog is for informational purposes and should not be considered as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Trump Administration Imposes Another Unnecessary Obstacle: USCIS to Issue New Version of Form I-539 and New I-539A on March 8

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U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.

Form I-539 is used for a variety of application types, including:

  • Certain nonimmigrant applications for an extension of stay
  • Certain nonimmigrant applications for a change of status
  • Reinstatement for F-1 and M-1 students

USCIS has expanded the scope of information to be gathered and will change the filing and adjudication requirements. The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 instructions.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

USCIS said it will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

The biometric requirement is bound to slow down the process especially when the dependents are accompanying the principal through a premium processing request. The USCIS has always taken the position that premium processing only applies to the principal filing the Form I-129, and processing the I-539 and I-765 is only a courtesy. The new biometric requirement will most likely deprive the dependent of any premium processing. It also seems odd to subject dependents to biometrics, but not the principal beneficiary. Even dependent infants will be subject to biometrics. Besides being cruel, it also adds another layer of uncertainty in the life of a foreign national worker who may also be subject to a denial of the renewal of his or her Form I-129 request.

The new biometric requirement poses yet another obstacle to foreign nationals who are legally in the US and wish to play by the rules. It is completely unnecessary to subject dependents to biometrics when the principal is not. Not only will it deprive dependents from taking advantage of premium processing, but it will lead to further delays with respect to spouses who are seeking to obtain or renew work authorization as H-4 or L-2 dependents.  The Trump Administration is also on the verge of promulgating a new regulation that will rescind work authorization for H-4 spouses. The biometric requirement will delay the H-4 spouses ability to obtain another renewal before the H-4 regulation takes effect. It only adds insult to injury and rubs salt in the wound of those waiting in the never ending green card backlogs.

 

 

Cora-Ann Pestaina

F-1 Cap Gap Students In Limbo From October 1, 2018 Onward If Their H-1B Cases Have Not Been Approved

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It is October 1, 2018 and this morning, in what is an extremely unfortunate yet totally preventable situation, businesses across the U.S. were forced to temporarily terminate the employment of F-1 students who were previously employed pursuant to their cap-gap extension period.

Briefly, the cap-gap extension regulation temporarily extends the OPT (Optional Practical Training) period for F-1 students with pending H-1B petitions and requests for change of status. The cap-gap period starts when an F-1 student’s status and work authorization expire, and they are extended through September 30th, the end of fiscal year. The ongoing suspension of USCIS’ premium processing service, previously discussed in one of our earlier blogs, has critically impacted H-1B cap subject petitions for F-1 students in the cap-gap extension period. USCIS has found a way to basically suffocate the H-1B visa program.

USCIS extended the suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions which was originally slated to last until September 10, 2018, through to an estimated date of February, 19, 2019. USCIS’ premium processing service has always been a heavily utilized option for U.S. businesses providing them with a significantly faster adjudication timeline of a few weeks instead of the regular processing time of 6-9 months! The premium processing option also allowed businesses to ensure that their professional staff would be available to meet critical project timelines and thus allowed them to plan accordingly. Employers had to offer the jobs prior to April 1, and then file H-1B petitions on behalf of the foreign national within the first five days of April 2018 to be considered in the H-1B visa lottery.  Under the H-1B regulations, an H-1B petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary’s services or training. Therefore, U.S. employers are unable to file an H-1B petition on behalf of a prospective employee more than six months from the intended start date but the processing of that H-1B petition may take well beyond six months.  Without premium processing, many employers are left unable to hire the H-1B worker on October 1, 2018 even though the job offer was made more than six months ago and the petition is potentially approvable. In addition, premium processing was also a great tool for the F-1 student. Imagine having a petition filed on your behalf in the first week of April and for the next 6-9 months, or likely longer, being unable to make any concrete plans for your future, including not knowing whether you would be allowed to remain in the US or have to immediately pack your bags and leave.

USCIS stated that the suspension of premium processing is necessary in order to allow the agency to “[b]e responsive to petitions with time-sensitive start dates” but it is not clear why F-1 students who are in a cap-gap extension period failed to qualify as having time-sensitive start dates. U.S. employers forced to suspend the employment of these F-1 students have no recourse. USCIS has indicated that these petitioners may submit a request for expedited processing but the expedite process is grossly unreliable and it is not clear how these requests are being processed. It is by no means a viable alternative to premium processing.

As of October 1, F-1 students previously employed pursuant to a cap-gap extension are no longer authorized to work and will start accruing unlawful presence in the U.S. if they continue to work under the new unlawful presence policy applicable to students. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. This student also cannot travel during the limbo period, unless he or she is prepared to return to the US after the H-1B petition is approved on a new H-1B visa. But one should not assume that the H-1B petition will get approved in a climate where the Trump administration is routinely challenging H-1B petitions for occupations that were previously easily approved.  Although the USCIS has at this time delayed its removal policy with respect to employment-based petitions that ultimately get denied, the delay will not be indefinite and these F-1 cap students will find themselves not just  accruing unlawful presence, but will also find themselves facing removal proceedings if the H-1B petition and the request for change of status is denied.

Of course, if an F-1 student with a pending change of status H-1B petition has work authorization (such as a valid Employment Authorization Document (EAD)) that extends past September 30th they may continue to work as authorized.

The American Immigration Lawyers Association (AILA) has called on USCIS to immediately lift the premium processing suspension on FY 2019 H-1B cap-subject petitions for beneficiaries who are in a cap-gap extension period, or alternatively, to publish a notice in the Federal Register extending the cap-gap work authorization period to at least 90 days beyond September 30, 2018, or until all FY 2019 H-1B cap cases can be adjudicated. To date USCIS has issued no response to this request.

In choosing to so suffocate the H-1B visa program, USCIS is restricting legal immigration and fulfilling the Trump administration’s objective under its “Buy American and Hire American” Executive Order No. 13788. But a negative chain reaction easily ensues with an immigration policy influenced by BAHA:  U.S. businesses cannot remain competitive if they are unable to hire the best students graduating from US universities, including foreign students in F-1 status.  U.S. universities will get hurt if they cannot attract the best students in the world who also pay full tuition fees. The U.S. loses out as a nation if it cannot compete with other countries for the best and brightest. The only way out of this downward spiral is for this administration to come to its senses and provide much needed oxygen to the H-1B program it has cruelly strangulated by restoring premium processing and adjudicating bona fide H-1B petitions more sensibly so that they get approved rather than denied.

 

 

 

 

Cora-Ann Pestaina

Is There A Hidden Agenda? Suspension of Premium Processing for All H-1B Petitions

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In one move that we did not see coming, USCIS has announced that, starting April 3, 2017, it will temporarily suspend premium processing service for all H-1B petitions. Petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. This includes cap-subject H-1B petitions, petitions for H-1B extensions or amendments and petitions for change of H-1B employer. This suspension may last up to 6 months and USCIS will notify the public before resuming premium processing for H-1B petitions. The temporary suspension will not apply to other eligible nonimmigrant classifications filed on Form I-129.

As background, premium processing service provides expedited processing for a specific list of employment-based immigrant and nonimmigrant petitions. This list has always included the H-1B petition. The request is submitted on Form I-907 which carries a fee of $1,225. Upon receipt of this request, USCIS guarantees 15 calendar day processing or USCIS will refund the fee. Within the initial 15 days, USCIS will issue an approval or denial notice, a notice of intent to deny (NOID) or a request for evidence (RFE). If a NOID or RFE is issued, a new 15 calendar day period will begin upon USCIS’ receipt of a complete response. Premium processing service is also quite desirable because it allows petitioners and attorneys to communicate directly with USCIS officers via telephone or email. USCIS also issues an email notification when the case has been received and when it is approved.  Also, rather than having to wait for snail mail to arrive, petitioners receive RFE’s and denial notifications via fax.

Each year, thousands of petitioners request premium processing service for their H-1B petitions filed under the H-1B cap. The initial email notification and the 15 day adjudication period can go a long way toward providing peace of mind for anxious H-1B petitioners and beneficiaries. For petitions filed under regular processing, USCIS receipt notices are sometimes not received until May or even June and the petition can remain pending for months, even past the October 1 employment start date. Cap-subject H-1B petitions are accepted during the first five business days of April. This year, since April 1 falls on a Saturday, cap-subject H-1B petitions for the 2018 fiscal year (FY18) will be accepted from Monday, April 3 to Friday, April 7, 2017. The suspension will therefore apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). USCIS will reject any Form I-907 filed with an H-1B petition. Therefore, if the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.

USCIS has stated that the suspension will help the agency to reduce its overall H-1B processing time and allow it to process long-pending petitions which it has 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. USCIS also claims that the suspension will allow the agency to prioritize the adjudication of H-1B extension of status cases that are nearing the 240 day mark. Under 8 CFR § 274a.12(b)(20), an H-1B worker is authorized to continue working for the same employer for up to 240 days beyond the expiration of the current immigration status (i.e. beyond the date listed on their most recent Form I-94) if the employer files an H-1B extension request in a “timely” manner.  In recent times, the processing times for H-1B petitions have come close to or even moved beyond 240 days. This is probably attributable to increased filings as a result of the decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) which mandates the filing of H-1B petitions for amendment whenever there is a change in the H-1B work location. Once the 240 day period has passed, the employee may remain in the US awaiting the adjudication of the petition but will no longer be authorized to work. If the H-1B worker works past the 240 days, not only will he or she be in violation of status, but will lose the tolling exception to unlawful presence too. According to USCIS guidance, unlawful presence is tolled when a timely extension request is filed, but that tolling will be lost if the foreign national engages in unauthorized employment either before or after the timely extension has been filed. Thus, working beyond 240 days will result in the loss of the tolling protection to unlawful presence.

We hope that we can trust in USCIS’ stated intent and that there is nothing more sinister behind the suspension. It is no secret that some people in charge of immigration policy in the Trump administration do not like the H-1B visa as it is perceived, albeit erroneously, to be taking away jobs that should go to American workers. There are ongoing efforts within Congress to change how the H-1B system works. One bipartisan bill, H-1B and L-1 Visa Reform Act of 2017, proposes to reform the program by instructing officials to grant visas on merit, rather than through a lottery. Is the stoppage of premium processing for 6 months really just a way to slow down the H-1B program and thus make it more difficult for employers to retain skilled H-1B workers? Is this in keeping with Bannon’s goal for the endless deconstruction of the administrative state? Granted, this is not the first time that premium processing service has been suspended. Last year, USCIS announced that in order to prioritize data entry for cap-subject H-1B petitions, while they would still accept Forms I-907, they would actually begin any requested premium processing for H-1B cap-subject petitions by May 16, 2016. That suspension applied only to cab-subject H-1B petitions and was implemented for a very short-term with a firm end-date indicated. It was therefore not only understandable but moreover, believable, as a means to cope with an expected influx of petitions. This time, the timeline could be indefinite, as USCIS vaguely states that the suspension may last up to 6 months, and USCIS has applied the suspension across the board on all H-1B petitions, a move that will most likely lead to an increase in the very backlogs that they are allegedly seeking to eliminate.

The suspension of premium processing service could also result in very serious complications for H-1B employees. The inability to upgrade the petition to premium processing will mean that H-1B employees might be unable to travel outside the US. An H-1B worker with a pending petition whose immigration status has expired will need to apply for and obtain a new H-1B visa at a US Consulate abroad if he travels outside the US. Such an employee would be ill-advised to embark on an international trip when there is no indication as to when the pending H-1B will be adjudicated. Also, some states require an H-1B approval notice in order to extend driver’s licenses. If the H-1B worker needs to drive to work every day, the inability to obtain an expeditious H-1B approval could mean that he is unable to work.

An H-1B worker who is porting to a new employer may begin working for the new employer upon the filing of a nonfrivolous H-1B petition on his behalf provided, inter alia, that this petition was filed before the end of his period of authorized stay. It has always been advisable to obtain an approval of the new H-1B petition and the security that comes along with that before making the leap to new H-1B employment. The suspension of premium processing service means that more H-1B workers will be forced to take a chance and port to the new employer before the H-1B petition is approved. If the H-1B petition is ultimately denied, they do have the option to return to the first H-1B employer but, realistically, not only is it most likely that those bridges will have burnt but that initial H-1B employer is also obligated to notify USCIS when the H-1B worker is no longer employed. If USCIS has already been notified then that initial H-1B would no longer be viable even if the employer were willing to rehire the H-1B worker.

Also, where an H-1B worker has ported to new H-1B employment based on a pending petition timely filed by employer B, the worker may port again to employment with employer C while the petition filed by employer B is still pending but provided that the H-1B worker’s initial period of authorized stay, as indicated on his Form I-94, has not yet expired. The suspension of premium processing service will likely increase the processing time for all H-1B petitions and therefore significantly increase the likelihood that H-1B workers will no longer be able to take advantage of such privileges.

USCIS has indicated, however, that it will continue to accept requests for expedited processing during the suspension period. Petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, which include severe financial loss to company or person​; emergency situation; and humanitarian reasons. USCIS has stated that it will review all expedite requests on a case-by-case basis and that requests will be granted at the discretion of the office leadership.

If the H-1B visa system is gummed up in this manner, US employers will not be able to attract the best global talent. Some of the employers that will be hit the hardest will be technology companies seeking to attract the best talent before their competitors do. It is already difficult to do so given the H-1B annual cap of a measly 65,000 visas with an additional 20,000 for master’s degrees. The United States is no longer the only game in town. Frustrated workers will leave for more hospitable countries. The H-1B system is already a mess. Why the need to mess it up even more?

Cyrus Mehta

Hey Boss, I Need Premium Processing: Can An H-1B Employee Pay The Premium Processing Fee?

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By Cyrus D. Mehta and Myriam Jaidi

An employer is in the process of preparing an H-1B extension for an employee.  The employer is preparing the petition several months before the expiration of the employee’s current H-1B status, and therefore has determined to file without premium processing. Moreover, pursuant to 8 CFR § 274a.12(b)(20), the employee can continue working for the same employer for a period not to exceed 240 days after the expiration of the H-1B status provided a timely request was filed.   The employee, however, has approached the employer, expressing a need for premium processing because of upcoming travel plans or other personal reasons.  If the employer does not need premium processing for its own business reasons, and premium processing would be only for the employee’s benefit, may the employee pay the premium processing fee, which is currently $1225? (Please note that this blog post addresses the premium processing fee in the H-1B context only; payment of the premium processing fee by a beneficiary of an I-140 immigrant petition is allowed without question.)

This is a gray area, like so many things in immigration law, because there is no clear rule on the issue and, believe it or not, different government agencies have taken different stances on the issue over time, and of course, no one approach is clearly definitive. Anecdotal data provides some guidance, as so much in our practice comes from cumulative experience on issues like the one here, i.e., whether a beneficiary may pay the premium processing fee.  Although no agency has opined on the issue since 2009, allowing the H-1B beneficiary to pay the premium processing fee may be defensible where the benefit inures solely to the employee, the employer has no need for the premium processing, and the payment of the premium processing fee does not drop the H-1B beneficiary’s wage below the required wage.  

In 2001, legacy INS (the agency that was dissolved in 2003 and reconstituted as three agencies within the Department of Homeland Security, specifically US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (USICE), an US Customs and Border Protection (USCBP)) confirmed with AILA (American Immigration Lawyers Association) liaison that “there is no bar to employees providing the Premium Processing fee checks.”  See ISD Liaison Report for 8/9/01 (AILA InfoNet Doc. No. 01082431 (posted 8/24/01)).  On August 12, 2009, the Vermont Service Center (one of the Service Centers of USCIS) issued a practice pointer prepared by their Adjudications Branch that made the following statement on page 12: “The petitioner, attorney, or beneficiary can pay $1000 Premium Processing fee.” See Adjudications Branch, Vermont Service Center, VSC Helpful Filing Tips (August 12, 2009; AILA InfoNet Doc. No. 09112363 (posted 11/23/09)).  No restrictions on the beneficiary paying the premium processing fee were noted by legacy INS or USCIS.  

Interestingly, also in August 2009 the Department of Labor, Wage and Hour Division issued a Fact Sheet that conflicts somewhat with the USCIS position on the premium processing issue, but does not prohibit the employee from paying it.  That Fact Sheet states that an H-1B employee, “whether through payroll deduction or otherwise, can never be required to pay the following. . . .  Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate (20 CFR § 655.731(c)(9)), including . . . any expense, including attorney’s’ fees and the premium processing fee (INA § 286(u)) directly related to the filing of the Petition for Nonimmigrant Worker (Form I-129/I-129W) (20 CFR §655.731(c)(9)(ii) and (iii)(C).” Other things included in that list were tools and equipment, travel expenses while on employer’s business, and any expenses, including attorney’s fees, directly related to the filing of the Labor Condition Application (LCA).  

The only other statement from the DOL was a decision by an Administrative Law Judge (ALJ) in 2008 where the ALJ cited the regulation provision referring to the then $1000 training fee to find that the regulation requires that the employer pay the premium processing fee.  See Toia v. Gardner Family Care Corp., 2007-LCA-00006 (ALJ Apr. 25, 2008) at page 20.  This was clearly an erroneous decision because the ALJ was confusing the premium processing fee, which the regulations do not  specifically prohibit payment by the H-1B beneficiary, and the training fee, which the regulations specifically state must not be paid by the H-1B beneficiary, because both happened to be $1000 at the time of the decision.  The DOL Fact Sheet is in fact more amenable to the idea that a premium processing fee could be paid by a Beneficiary because unlike the ALJ decision purporting to ban that practice, the DOL Fact Sheet leaves room to allow a beneficiary to pay a premium processing fee if doing so does not drop the wage below the required wage. 

The immigration law treatise, Buffenstein & Cooper, Business Immigration Law & Practice, Volume 1, Nonimmigrant Concepts (AILA 2011), confirms this is a gray area, and provides no conclusive answer.  The discussion in the treatise supports the argument that where premium processing is pursued at the insistence of the beneficiary, it could be considered the individual’s expense.  

The crux of the matter is whether the premium processing fee would be viewed as a “business expense” of the employer under the DOL regulations governing the H-1B LCA, in which case the DOL could view it as a wage & hour issue and analyze whether the deduction of the premium processing fee worked an impermissible dropping of the H-1B employee’s wage below the required wage (the higher of the actual or prevailing wage). This is something of a distinction without a difference because in any cases where you have more than one similarly situated employee in a position (i.e., where the position is not unique) the deduction of the premium processing fee would always drop the wage below the actual wage.  In positions that are unique, whatever is paid to the unique employee is the actual wage so the premium processing fee would not necessarily drop the wage below the prevailing wage.  

There is anecdotal evidence, based on surveying attorneys on a private list serve, that the DOL in at least two LCA investigations did not consider the premium processing fee to be an employer’s expense where the employee has requested premium processing for the employee’s benefit.  Many attorneys on the AILA list serve seemed to agree that premium processing should not be considered an employer expense, but this thread has not been updated since 2007. 

One interesting question is whether the premium processing fee could be deducted from a benefit such as a performance bonus.  Cash bonuses are considered a “benefit” under the DOL regulations.  The regulation states as follows: 

Benefits and eligibility for benefits provided as compensation for services (e.g., cash bonuses; stock options; paid vacations and holidays; health, life, disability and other insurance plans; retirement and savings plans) shall be offered to the H-1B nonimmigrant(s) on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.

Thus, a company is required to *offer* H-1B employees the same benefits as US workers. However, another section of the regulation makes clear that the H-1B employee may choose to turn down benefits: 

The benefits received by the H-1B nonimmigrant(s) need not be identical to the benefits received by similarly employed U.S. workers(s), provided that the H-1B nonimmigrant is offered the same benefits package as those workers but voluntarily chooses to receive different benefits (e.g., elects to receive cash payment rather than stock option, elects not to receive health insurance because of required employee contributions, or elects to receive different benefits among an array of benefits)

The upshot is that there is a strong argument to be made for the conclusion that where an employee demands premium processing of an H-1B petition solely for the employee’s benefit, that premium processing fee should not be deemed an “employer business expense” such as to trigger a wage/hour analysis of the offered wage that could result in a finding against the employer.  In addition, the fee could be deducted from the performance bonus so long as the employee has been offered benefits on the same basis and using the same criteria as offered to US workers, but opts for a different benefit.  If an employer takes this approach it would likely be best to get the employee’s agreement in writing that they are opting out of the full bonus because of their own need for premium processing on an H-1B petition to accommodate their personal circumstances, and that the premium processing is not done for the employer’s benefit. 

Obviously, given the conflicting positions taken by USCIS and the DOL regarding premium processing fees, this remains a gray area and the most risk adverse and cautious approach would be to avoid any question of the employer paying the appropriate wage by having the employer pay the premium processing fee.  However, as noted above, it is defensible to have the employee pay the premium processing fee where it inures solely to the employee’s benefit.

What are the risks?  The regulations provide for various penalties relating to LCA violations.  A DOL action would only likely come to pass in the event of an employee filing a wage and hour complaint with the DOL, and based on a single complaint on any LCA issue, the DOL could audit all of the LCA files of an employer.  

If an employee complains and the DOL determines that the premium processing fee worked a reduction in the required wage, the employer would be required at the very least to reimburse the employee for the premium processing fee.  Assuming in the worst case that the DOL misconstrues the premium fee to be like the training fee, which is what the ALJ did in the 2008 decision noted above, the DOL may also impose a $1,000 fine per violation.  As a practical matter, an employee may first make a demand for reimbursement or back wages before complaining to the DOL, and under those circumstances, it would be advisable for the employer to reimburse the employee for the premium processing fee.  The regulations provide for enhanced penalties for “willful” failure to pay the required wage such as fines up to $5,000 and debarment from filing new H-1Bs.  However, this is truly a worst case scenario speculation, based on collective experience with DOL investigations where DOL auditors have taken the position that the fee was not an employer’s business expense and have not required the employer to reimburse the employee for payment of the premium processing fee.  The expectation would be that an employer would be able to present a strong argument that this is a gray area and there was no willful failure here.  

We hope that the DOL and USCIS will coordinate their positions on premium processing in H-1B cases and recognize that it is often employees, not employers, who truly need premium processing on their H-1B cases, and thus should be able to make the payment in those cases to facilitate their own personal plans.  Moreover, premium processing is not directly related to the filing of an H-1B petition.  It only expedites the petition, which has in any event been filed, and the employee often then desires that the H-1B petition be expedited for personal reasons.  In such cases the premium processing fee should not be viewed as an employer’s business expense, thus allowing both the employer and employee the best outcome.