Timelines, Premium Processing, 240-day Rule & H-1B Portability

Timelines

The timelines for obtaining different immigration benefits vary. They depend on the benefit being requested, the time of year, caseload at USCIS as well as the responsiveness of the department and the applicant. If the foreign national must obtain a visa, timelines might be skewed further, especially if the applicant is subjected to a background check. Please refer to each individual immigration status overview for an estimate of the timeline associated with each immigration status.

As a rule of thumb, departments should start the relevant request process as soon as possible, i.e. as soon as a decision has been made on the hire or continued employment of a foreign national. In many cases, the IC can submit an immigration benefit request as early as six months prior to the requested start date. In practice, this means that there is no such thing as submitting a request to the IC too early.

Often the longest period of time in an application process for an immigration benefit is the time USCIS needs to adjudicate a petition. For example, USCIS’s target timeframe for adjudicating H-1B petitions is two months. However, this timeframe is not guaranteed and is often exceeded by significant margins.

Note that completing the green card process may take several years, depending on the specific application process and country of birth of the beneficiary.

Premium Processing

For most of the common types of applications it is possible to request Premium Processing. Petitions that are filed under Premium Processing are expedited by USCIS and are considered within 15 days of receipt by USCIS. The governmental filing fee for this service is $1,225 over and above the standard filing fees. This fee must be paid by the employer, unless the request for expedited processing comes from the foreign national and is NOT related to his or her employment.

240-day Rule & H-1B Portability: Transfers and Amendments

When filing a petition for an extension for an individual in E-3, H-1B, H-1B1, O-1 or TN status, the foreign national may continue his or her employment as soon as the requested start date has been reached or as soon as the petition has been received by USCIS, whichever is later. The beneficiary may work on the basis of this pending petition. The petition does not need to be approved by USCIS first. In the case of extension requests, the employment authorization is limited to 240 days. The 240-day period commences on the day following the expiration of the previous USCIS approval. If the petition were to be denied within that 240-day period, the employment authorization would end on that day.

Employees in H-1B status who are transferring from another employer to UM or existing UM employees in H-1B status for whom a new H-1B petition to request a change or amendment of their H-1B status (including petitions that also request an extension) may start in their new position as soon as the requested start date has been reached or as soon as the petition has been received by USCIS, whichever is later. Beneficiaries of these petitions may work until the petition is adjudicated by USCIS regardless of the USCIS processing time. Assuming the petition is approved by USCIS, the new end date as indicated on the formal approval notice will prevail. If USCIS were to deny the petition, the employment authorization would end on that day.