Will paying for Premium Processing help avoid the H-1B cap?

Paying the extra premium processing fee offers few benefits in connection with an H-1B visa petition.

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Question

My employer is submitting an H-1B petition for me this April. I am subject to the H-1B cap. I currently am working on my F-1 visa with Optional Practical Training, which expires this summer, so I really need the H-1B visa in order to continue working. If we pay the extra Premium Processing fee for 15-day service, will that avoid the H-1B cap? Or if I'm still subject to the cap, will Premium Processing increase my odds if there are more petitions submitted than there are visas available?

Answer

Paying the enhanced fee for Premium Processing will neither avoid the H-1B cap nor increase your odds of getting a visa. Premium Processing affects only how quickly United States Citizenship and Immigration Services (USCIS) processes the H-1B petition. It cannot make someone exempt from the annual quota, or cap.

In years when USCIS receives more petitions than the maximum number of visas for the next fiscal year, it conducts a random lottery to allocate the 85,000 total visas. USCIS first selects 20,000 petitions submitted for persons with U.S. graduate degrees. Any additional U.S. graduate degree petitions then enter the remaining pool to allocate the base amount of 65,000 visas. See "H-1B Visa to the U.S.: Who Qualifies?" for more information on the cap.

When USCIS receives more than 85,000 petitions, it also typically announces that any Premium Processing requests will be put on hold pending the outcome of the random selection process. Once USCIS has selected the 85,000 petitions for processing, it will start the 15-day Premium Processing clock to review the petition.

Therefore, Premium Processing comes into effect only after the random lottery has run.

Finally, keep in mind that Premium Processing affects only when USCIS will review (and hopefully approve!) your H-1B petition. Because you are subject to the cap, the petition will be effective as of October 1, which is when the visa is available for the next federal fiscal year.

The only time it may make sense to pay for Premium Processing, therefore, is if there are questions about the merits of the petition, that is, will USCIS approve it? If it's not clear, and you'd like to have an answer sooner, it may be worth the extra money for peace of mind.

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