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Advantage of ‘premium processing’

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Q: What is “premium processing”?

A: This is a euphemism for paying an extra fee to get the USCIS to do the job they are otherwise being paid to do. Seriously, it is a program that allows someone to pay an extra $1,225 and receive a guarantee that their case will be adjudicated within 15 calendar days. If it is not, they get their money back. Premium processing does not apply to all types of petitions and applications. It does, however, apply to H-1B petitions.

Q: If my employer files my case under premium processing, does it cover my spouse and children as well?

A: If the employer files the I-539 for the spouse and children together with the H petition for the employee, and puts them in the same premium processing package, then the I-539 will be processed within 15 days also. If it is not submitted at the same time, however, it will not be given premium processing.

Q: How long will I remain in status if I lose my job?

A: An H-1B employee, who loses his or her job, also loses H-1B status immediately. There is no “grace period” authorized by law. Some CIS offices will allow an applicant a few days or weeks to apply for other nonimmigrant status, but this is a matter of individual discretion on the part of the CIS adjudicator, not something guaranteed by law.

Q: What can I do to protect myself if I lose my job and am looking for a new job?

A: If you learn that you are going to lose your job, you need to take immediate action to protect your nonimmigrant status. One method would be to file an immediate application for change of nonimmigrant status to B-1. Explain to the CIS that you have just lost your job and that you wish to go into B-1 status while you are looking for a new job. Get this application on file before the end of your last working day and you will be protected while it is pending. If you find another position, the new employer can file a new H petition on your behalf and you may begin working as soon as the CIS receives the new petition. The employer’s petition should reference your pending B-1 change of status application and notify the CIS that it is a superseding application.

Q: Does my employer have to pay the salary shown on the LCA?

A: Yes, absolutely. The employer must pay at least the salary shown on the LCA. If the employer does not, it is responsible for back pay and fines.

Q: When is it acceptable for an employer to bench me?

A: An employer may ask an H employee to not work, but unless the employer continues to pay the full salary shown on the LCA, the employer is in violation of the law. Unless and until an employer informs the CIS that it wishes to revoke the approved H petition and terminate the employee, the employer remains legally obligated to pay the full salary shown on the LCA. If an employee is paid less than the full salary shown on the LCA, the employee is out of status.