USCIS seeks to address delays with expansion of premium processing

On March 30, 2022, United States Citizenship and Immigration Services (USCIS) pleased us with the release of a final rule, Implementing the Emergency USCIS Stabilization Act, which outlines several welcome changes to the USCIS premium processing service. This rule is expected to come into effect on May 31, 2022.

In the background, a premium processing service may be requested for certain petitions filed with USCIS. For eligible petitions, a $2,500 fee guarantees processing within 15 days of filing. Within the 15-day period, USCIS may issue a Notice of Approval, Notice of Denial, Notice of Intent to Deny (NOID), or Request for Evidence (RFE), or initiate an investigation for fraud or misrepresentation. statement. 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. Premium processing fees are not waived.

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 the 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 for a national interest waiver or for the EB-1C multinational executive or director was, inexplicably, not eligible for the premium processing service. the Form I-129 is also currently eligible for bounty 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 NT (TN-1, TN-2). There is a $1,500 premium processing fee for filing Form I-129 requesting H-2B or R nonimmigrant classification.

The lack of a premium processing service for requests such as Form I-539, Request to Change Status or Extend Stay means that dependent spouses applying for H-4 or L-2 status are required to wait several months for approval of their applications while H-1B or L-1 applications filed on behalf of their spouses can be approved within 15 calendar days as part of premium processing. The processing time for a Form I-765, Application for Employment Authorization, has stretched to well over six months and some people are still at risk of losing their original job offers due to the inability to the potential employer to wait sometimes up to 10 months for the individual to produce a work authorization document (EAD). Needless to say, the expansion of premium processing has been a long time coming.

The new final rule sets out a 45 days longer processing time with a $2,500 fee for Form I-140 petitions filed to request EB-1 – Multinational Executive or Director (EB-1C) or to request EB-2 – National Interest Waiver. There will be a 30 days deadline for Form I-539 applications submitted requesting a change of status in F-1, F-2, J-1, J-2, M-1 or M-2 or a change of status or an 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 in 30 days deposit.

The rule also states that USCIS plans to use additional IT resources to make Form I-907, Request for Premium Processing Service, available for electronic filing because it is not currently available electronically. There will be a phased implementation strategy to enable current premium processing revenues to pay for development and implementation costs associated with expanding service availability. As such, USCIS hopes to expand premium processing to the two additional Form I-140 visa classifications described above in FY2022. USCIS expects to be ready to accept applications for premium processing for Form I-539 of F-1, F-2, J-1, J–2, M–1, and M–2 candidates for fiscal year 2022 and of E–1, E–2, E –3, L–2, H–4, O–3, P–4, and R–2 applicants in fiscal year 2025. The rule provides that premium processing of employment authorization documents (EADs) for students applying for Optional Practical Training (OPT) and exchange visitors will begin in fiscal year 2022.

Under current procedure, issuing an RFE or NOID will stop the bounty processing clock and the clock will restart once USCIS receives a timely response. If USCIS does not rule on the petition or demand within the applicable time frame, the premium processing fee will be refunded and processing will continue.

Even after the final rule takes effect, we must wait for USCIS to announce, via its website, which benefit claims become eligible for premium processing; and the corresponding eligibility dates. Informally, USCIS has indicated that some pending petitions may become eligible for “premium processing upgrades” around June 1, 2022. This will be another highly anticipated announcement. As exciting as the final rule is, expectations still need to be managed as USCIS has made it clear that it will only expand premium processing on the condition that other pending benefit claims are not disadvantaged. Nonetheless, this is a very welcome step forward and further announcements are eagerly awaited.

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