06 Jun Update on Premium Processing of Petitions & Applications Filed with the USCIS
On May 24, 2022, USCIS announced that it will begin accepting Form I-907 Premium Processing requests for Form I-140, Immigrant Petition for Alien Worker, on behalf of Multinational Executive and Manager immigrant petitions received on or before January 1, 2021.
USCIS further announced that beginning July 1, 2022, it will accept Form I-907 requests for Form I-140 on behalf of National Interest Waiver (NIW) immigrant petitions received on or before June 1, 2021, as well as Form I-140 filed on behalf of Multinational Executive and Manager immigrant visa petitions received on or before March 1, 2021.
Proposed Additions to the Premium Processing Service
Under the final rule, a 45-day premium processing timeframe will become available for those requesting EB-1 immigrant classification as a Multinational Executive or Manager (hereinafter “EB-1C”) as well as those requesting EB-2 immigrant classification as a member of a profession with advanced degrees or exceptional ability seeking a National Interest Waiver (hereinafter “EB-2 NIW”). A 30-day premium processing timeframe will also become available to certain Forms I-539 (mainly for dependent family members of principal work visa categories, see the detailed table below) and the Form I-765, Application for Work Authorization. The table that follows provides practitioners with a snapshot of the proposed fee and timeframe for each new addition.
| Form Number | Description of Eligible Applications | Fee | Timeframe |
|---|---|---|---|
| Form I-140 | EB-1 – Multinational Executive or Manager (EB-1C)
EB-2 – Members of Professions with Advanced Degrees or Exceptional Ability Seeking a National Interest Waiver (EB-2 NIW) |
$2,500 | 45 days |
| Form I-539 | Change of Status Request to: F-1, F-2, J-1, J-2, M-1, or M-2
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 |
$1,750 | 30 days |
| Form I-765 | Request for Employment Authorization | $1,500 | 30 days |
While this final rule indicates that USCIS intends on expanding premium processing for the form types listed above, it should be noted that DHS anticipates a phased implementation approach. DHS has indicated that it hopes to expand premium processing to the additional Form I-140 visa classifications listed above in FY 2022. On May 24, 2022, USCIS announced implementation of premium processing for certain From I-140 EB-1 and EB-2 petitions to become available on June 1, 2022 and July 1, 2022. With respect to the Form I-539, USCIS anticipates accepting premium processing requests 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. Thus, DHS has indicated it will prioritize premium processing for students applying for Optional Practical Training (OPT) and Exchange Visitors beginning in FY 2022, while others who require an Employment Authorization Document may have to wait until FY 2025 so that USCIS has sufficient time to gather revenue to cover potential costs without adversely affecting the processing time for other benefits.
Clarification on RFE and NOIDs stopping the timeframe and resetting the clock
The final rule clarifies that issuance of a Request for Further Evidence (RFE) or Notice of Intent to Deny (NOID) will stop the premium processing timeframe. Upon receipt of the requested evidence, the timeframe will start over. If it does not adjudicate the petition within the applicable timeframe the USICS will refund the premium processing fee, but will continue processing the case. If the USCIS opens a fraud or misrepresentation investigation on a case, it will not refund the premium processing fee and will not adjudicate petition within the premium processing time frame.
Key Factors Affecting the Expansion of Premium Processing
This final rule gives hope for a respite from the lengthy processing delays to which they have become accustomed over the past several years. However, we should be mindful that the rule mentions certain prerequisites that must be met to ensure smooth implementation of premium processing, such as:
Electronic I-907s required to ensure no adverse effect on current benefits
USCIS indicates premium processing will not be made available if it adversely affects the processing timeline for immigration benefits not designated for premium processing. As such, USCIS is prioritizing, and is in the process of expanding, electronic filing for all applications and benefit requests, including specifically the Form I-907, Request for Premium Processing. It expressly states that making the Form I-907 electronic will be a prerequisite to expanding the premium processing eligibility to newly designated immigration benefit requests. As of the time of the publication of this practice advisory, USCIS has not yet introduced an electronic filing option for Form I-907.
Final rule allows USCIS to retain discretion as to implementation dates for premium processing
While the final rule was set to be effective on May 31, 2022, it is important to note that the designation of a benefit request for premium processing (as well as establishing the corresponding fee and processing timeframes), does not in itself permit a request for premium processing to be filed. Instead, USCIS will communicate (1) which immigrant benefit requests are eligible for premium processing, (2) the date the eligibility becomes available and the date it ends, and (3) any conditions that may apply. Thus, even after the final rule becomes effective, USCIS will still need to announce when practitioners will be able to file these requests on their clients’ behalf.
On May 24, 2022, USCIS announced that beginning June 1, 2022, it will accept premium processing requests for Form I-140 E13 Multinational Executive and Manager petitions received on or before January 1, 2021, and that beginning July 1, 2022, it will expand premium processing requests for Form I-140 E13 Multinational Executive and Manager petitions to those that were received on or before March 1, 2021. It has also announced that on July 1, 2022, it will accept premium processing requests for NIW Petitions received on or before June 1, 2021. USCIS will publish additional updates on its premium processing website.
USCIS retains discretion to set conditions for premium processing eligibility
With the exception of the R-1 visa context, many practitioners ordinarily advise that a “bare-bones” filing will typically require the forms, fees, and basic evidence of eligibility at the time of filing. As discussed in this final rule, USCIS may impose any other conditions it deems appropriate for any new request for premium processing. Practitioners handling nonimmigrant Religious Worker matters are accustomed to one such requirement – a successful onsite inspection as a prerequisite to premium processing eligibility – but for others, this may be a new concept. USCIS still retains broad discretion to determine if a form will qualify for premium processing and the specific dates that the phasing-in of the premium processing expansion will take place. The agency also retained the authority to suspend premium processing in the future if circumstances prevent the completion of processing of a significant number of requests within the applicable processing timeframe. As of the writing of this practice pointer, USCIS has indicated that it will initiate the premium processing expansion described above on or about June 1. 2022, for pending petitions and that it will later expand it to new initial filings.
Conclusion
With the premium processing expansion and other efforts to return to more efficient processing timeframes, USCIS is taking significant steps to address its chronic processing delays. It is worth noting that USCIS made this decision based on data from prior years, which may offer some insight as to why certain classifications were included and others were not.It should be noted that TD status (the status granted to dependents of TN Visa holders) was not included as an expansion category for the Form I-539. It is also helpful that USCIS has acknowledged it is mindful that this expansion could impact the processing of other pending applications and that its aim is to implement expansions only if it is confident that other pending cases will not be disadvantaged. While further details are still required and a broader expansion of premium processing is still many months away, the final rule is a long-awaited and positive step towards a more efficient adjudication process for applicants in all benefit categories.
This posting is for informational purposes only and cannot be construed as legal advice. For more informaiton on employment-based non-immigrant and immigrant visas, please schedule a call with one of our lawyers using the link above or email our firm at info@flynnhodkinson.com.