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USCIS Seeks to Address Delays Through Expansion of Premium Processing

General / May 01, 2022

By Cora-Ann V. Pestaina

On March 30, 2022 U.S. Citizenship and Immigration Services (USCIS) thrilled us with the publication of a final rule, the Implementation of the Emergency Stopgap USCIS Stabilization Act, which set forth several welcomed changes to the USCIS’ premium processing service. This rule is set to become effective on May 31, 2022.

As background, premium processing service may be requested for certain petitions filed with USCIS. For eligible petitions, a fee of $2,500 guarantees processing within 15 days of filing. Within the 15-day period, USCIS can issue either an approval notice, denial notice, notice of intent to deny (NOID), or request for evidence (RFE), or open an investigation for fraud or misrepresentation. If USCIS does not take any of the above actions within the 15-day period, USCIS must refund the premium processing fee. If an RFE or NOID is issued, a new 15-day period begins when USCIS receives a complete response to the RFE or NOID. The premium processing fee is not waivable.

Currently eligible petitions include the Form I-140 for EB-1 Alien of Extraordinary ability (EB-1A), EB-1 Outstanding professors and researchers (EB-1B), EB-2, Members of profession with advanced degrees or exceptional ability, EB-3 Skilled Workers, EB-3 Professionals, EB-3 Workers other than Skilled Workers and Professionals. A Form I-140 filed to obtain a National Interest Waiver or for the EB-1C Multinational Executive or Manager has, inexplicably, not be eligible for premium processing service. The Form I-129 is also currently eligible for premium processing and includes petitions filed to obtain E (E-1, E-2, E-3), H (H-1B, H-3), L (L-1A, L-1B, LZ), O (O-1, O-2), P (P-1, P1S, P-2, P-2S, P-3), Q (Q-1), or TN (TN-1, TN-2) status.  There is a $1,500 premium processing fee is filing Form I-129 requesting H-2B or R nonimmigrant classification.

The lack of premium processing service for applications such as the Form I-539, Application for a Change of Status or Extension of Stay means that dependent spouses seeking H-4 or L-2 status are forced to wait many months for the approval of their applications while the H-1B or L-1 petitions filed on behalf of their spouses can be approved within 15 calendar days under premium processing. The processing time for a Form I-765, Application for Employment Authorization lengthened to well past six months and some individuals still stand to lose their initial job offers due to the prospective employer’s inability to wait sometimes up to 10 months for the individual to produce an employment authorization document (EAD). Needless to say, an expansion of premium processing has been a long time coming.

The new final rule sets forth a 45-day premium processing timeframe with a fee of $2,500 for Form I-140 petitions filed seeing seeking EB-1 – Multinational Executive or Manager (EB-1C) or seeking EB-2 –National Interest Waiver. There will be a 30-day timeframe for Form I-539 applications filed seeking a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 or a change of status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 for a fee of $1,750. And for a fee of $1,500, the Form I-765 will be processed within 30 days of filing.

The rule also indicates that USCIS plans to utilize additional IT resources to make the Form I-907, Request for Premium Processing Service, available for electronic filing as it is not currently available electronically. There will be a phased implementation strategy to allow current premium processing revenue to pay for development and implementation costs associated with expanding availability of the service. As such, USCIS hopes to expand premium processing to the two additional Form I-140 visa classifications discussed above in FY 2022. USCIS anticipates being ready to accept premium processing requests for Form I-539 from F–1, F–2, J–1, J–2, M–1 and M–2 applicants in FY 2022 and from E–1, E–2, E–3, L–2, H–4, O–3, P–4 and R–2 applicants in FY 2025. The rule anticipates that premium processing of Employment Authorization Documents (EAD) for students applying for Optional Practical Training (OPT) and exchange visitors will begin in FY 2022.

Consistent with current procedure, the issuance of an RFE or NOID will stop the premium processing clock and the clock will restart once USCIS receives a timely response. If USCIS fails to adjudicate the petition or application within the applicable timeframe, the premium processing fee will be refunded, and processing will continue.

Even after the final rule becomes effective, we must wait on USCIS to announce, via its website, which benefit requests become eligible for premium processing; and the corresponding eligibility dates. Informally, USCIS has indicated that certain pending petitions may become eligible for “premium processing upgrades” around June 1, 2022. That will be another eagerly anticipated announcement. As exciting as the final rule is, expectations must still be managed because USCIS has made it clear that it will only expand premium processing provided that other pending benefit requests will not be disadvantaged. Nevertheless, this is a very welcomed step forward and further announcements are eagerly awaited.