New Premium Processing Rules
On March 30, 2022, the United States Citizenship and Immigration Services (USCIS) released a policy that addresses the considerable number of updates to the premium processing benefits and gives clarity on when the USCIS will enforce the updates to premium processing filings. This policy or rule is referred to as the "Implementation of the Emergency Stopgap USCIS Stabilization Act." The USCIS on an informal tone had formerly pointed out that by June 1, 2022, it expects that the first execution of expanded premium processing (alternatively known as premium processing upgrades) will be done for pending petitions. The USCIS also inferred that they will make known when the acceptance of initial filings for premium processing requests will commence.
The purpose of this article is to help concerned legal practitioners in outlining expectations for their clients and update them on the nuances of the latest rule that affects a broader expansion of premium processing.
Present Premium Processing Options As Of April 2022.
The option of premium processing was first introduced in 2001 by the then Immigration and Nationality Service. It allowed some filers to request for their processing applications to be filed in 15 days if they pay a certain amount for premium processing. Over time, this amount has ranged from $1,000 to $1,225, and just before the enactment of the Emergency Stopgap USCIS Stabilization Act, the DHS brought it to $1,440 in 2019. The latest rule contains the increment in fees that were effective as of August 2020 and the different types of visas that will be qualified for premium processing. Below are the benefit categories currently open to premium processing, the amount required, and the duration.
Form I-140
Under the Form I-140, the applications currently eligible for premium processing are EB1 Alien of Extraordinary Ability (EB-1A), EB-1 Outstanding Professors and Researchers (EB-1B), EB-2 Members of a profession with advanced degrees or exceptional ability not seeking NIW, EB-3 Skilled Workers, EB-3 Professionals, EB-3 Workers other than skilled workers and professionals. The premium processing fee for people who fall under this category is $2,500 with a 15-days duration.
Form I-129
There are two sets of applications that are presently eligible for premium processing under Form I-129. The first set contains E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, Q-1, TN-1, TN-2. The fee for these is $2,500 with a timeframe of 15 days, while the second set contains R-1 and H-2B with 15 days of processing but for a fee of $1,500.
Proposed Additions To The Premium Processing
Under the latest rule, three new categories of visas will be open to premium processing. These visas are categorized under Forms I-140, I-539, and I-765 as follows.
Form I-140
Under Form I-140, additional visas open for premium processing are EB-1 Multinational Executive or Manager (EB-1C) and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver (EB-2 NIW). The fee for the premium processing of these visas is $2,500 within a 45 days time frame.
Form I-539
Under the Form I-539, applications that are eligible for premium processing are Change of Status Request to F-1, F-2, J-1, J-2, M-1, or M-2 and 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. The fee for processing these is $1,750 within a timeframe of 30 days.
Form I-765
The application eligible for premium processing under Form I-765 is the Request for Employment Authorization. The timeframe set for this is 30 days with a fee of $1,500.
While the USCIS proposes to expand premium processing for the forms listed above, the DHS expects that the implementation of the premium processing will be done in phases.
Clarification on RFE and NOIDs Stopping the Timeframe and Resetting the Clock
The latest rule asserts that the issuance of a Request for Further Evidence(RFE) or Notice Of Intent to Deny will stop the premium processing timeframe. The timeframe will start over upon receipt of the requested evidence. If the USCIS does not adjudicate the petition within the applicable timeframe, it will return the premium processing fee, but continue to process the case. On the other hand, if the USCIS opens a misrepresentation or fraud investigation on a case, it will not return the premium processing fee and will not adjudicate the petition within the premium processing duration.
Major Factors That Could Affect The Expansion Of Premium Processing
Although this rule gives relief from delayed processing times that applicants and practitioners have become used to, certain prerequisites must be met to ensure a smooth implementation of premium processing, such as:
- Electronic filing of Form I-907s is needed to ensure that there are no unfavorable effects on present benefits.
- The USCIS holds the discretionary right to dictate implementation dates for premium processing.
- The USCIS holds the discretionary right to dictate conditions for premium processing eligibility.