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  • Writer's pictureRathee Law Firm

USCIS ANNOUNCES NEW POLICY TO EXPEDITE I-539 APLICATIONS FOR NONIMMIGRANT WORKERS FACING TERMINATION OF EMPLOYMENT


Nonimmigrant workers in the United States who have lost their jobs, either voluntarily or involuntarily, may face challenges in maintaining or changing their status or finding new employment. U.S. Citizenship and Immigration Services (USCIS) has recently published an update to its web page outlining Options for Nonimmigrant Workers Following Termination of Employment, which provides information and guidance on various options that may be available to these workers. However, one of the most notable changes is the agency’s announcement that it will prioritize a pending I-539 application to change status to B-1/B-2 visitor status when an employer subsequently files an I-129 change of status petition with a premium processing service request.


WHAT IS FORM I-539 AND FORM I-129?


Form I-539 is an application to extend or change nonimmigrant status for certain categories of nonimmigrants, such as dependents of principal workers, students, visitors, or temporary workers. Form I-129 is a petition to request a nonimmigrant worker classification for certain categories of workers, such as H-1B, L-1, O-1, or TN. Both forms are filed with USCIS and require a fee and supporting documents.


WHY IS FORM I-539 AND FORM I-129 RELEVANT FOR NONIMMIGRANT WORKERS WHO HAVE LOST THEIR JOBS?


Nonimmigrant workers who have lost their jobs may use Form I-539 and Form I-129 to remain in the United States legally and seek new employment opportunities. For example, a worker in H-1B status who has been terminated by his or her employer may file a Form I-539 application to change status to B-1/B-2 visitor status within 60 days of termination. This may allow the worker to stay in the United States for a temporary period of time while looking for another employer who can sponsor him or her for H-1B status. If the worker finds such an employer, the employer may file a Form I-129 petition to change the worker’s status back to H-1B.


WHAT IS THE PROBLEM WITH FORM I-539 AND FORM I-129 PROCESSING TIMES?


One of the main challenges that nonimmigrant workers face when filing Form I-539 and Form I-129 is the long processing times for both forms. According to USCIS’s website, as of December 31, 2022, the average processing time for Form I-539 ranged from 5.5 months to 12 months, depending on the service center and the category of nonimmigrant. The average processing time for Form I-129 ranged from 2 months to 9 months, depending on the service center and the category of nonimmigrant.

Due to these long processing times, the H-1B petition will likely be filed before the B-1/B-2 visitor application is adjudicated. Previously, when an I-129 petition was filed while an I-539 application was pending, there was often a delay in adjudication of the I-129 because of the pending I-539. USCIS sometimes issued a Request for Evidence to show valid maintenance of status during the time the I-539 was pending. Foreign nationals who could not wait for the I-539 and I-129 to be approved were required to depart from the United States in order to obtain the nonimmigrant status requested on the I-129.


WHAT IS PREMIUM PROCESSING SERVICE AND HOW DOES IT HELP?


Premium processing service is an optional service that allows certain petitioners or applicants to request faster processing of certain immigration forms by paying an additional fee. Currently, the premium processing fee is $2,500 for most forms and $1,500 for certain cap-exempt H-1B petitions. The premium processing service guarantees that USCIS will take action on the form within 15 calendar days of receiving the request. If USCIS fails to do so, it will refund the premium processing fee and continue to process the form expeditiously.


Premium processing service may help nonimmigrant workers who have filed Form I-539 and Form I-129 to obtain faster decisions on their applications and petitions. For example, an employer who files a Form I-129 petition for an H-1B worker may request premium processing service by filing Form I-907 and paying the additional fee. This may allow the employer to receive a decision on the petition within 15 days, instead of waiting for several months.


WHAT IS THE USCIS UPDATE AND HOW DOES IT AFFECT NONIMMIGRANT WORKERS?


Per a recent USCIS update, if an employer files a Form I-129 petition along with Form I-907 for premium processing service, the agency will generally process the pending Form I-539 and Form I-129 together during the premium processing timeframe and issue concurrent decisions. No formal request is required for the pending I-539 to be prioritized. Furthermore, USCIS has indicated that if the Form I-129 petition is filed with a premium processing request, the foreign national will be granted the nonimmigrant status requested on the I-129 petition, and not on the I-539 application, even if both forms are approved on the same day.


This update may benefit nonimmigrant workers who have filed Form I-539 to change status to B-1/B-2 visitor status and whose employers have subsequently filed Form I-129 to change their status back to H-1B or another nonimmigrant worker category. By requesting premium processing service for the Form I-129 petition, the employer may be able to expedite the processing of both forms and receive concurrent decisions within 15 days. This may reduce the risk of delays, requests for evidence, or denials due to the pending I-539 application. Additionally, the foreign national may be able to avoid changing status to B-1/B-2 visitor status, which does not allow study or employment, and instead remain in or return to their nonimmigrant worker status.


CONCLUSION


Nonimmigrant workers who have lost their jobs have various options to remain in the United States legally and seek new employment opportunities. USCIS has recently updated its web page to provide information and guidance on these options, as well as to announce its prioritization of pending I-539 applications when employers file I-129 petitions with premium processing service requests. Nonimmigrant workers should consult with an immigration attorney to determine the best course of action for their situation and to avoid any adverse immigration consequences.


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