Detailed Analysis of Premium Processing for I-140s (Part I)
Posted Jul 28, 2006
[Part 2 of this article is available on MurthyDotCom.]
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Many regular readers of MurthyDotCom and the MurthyBulletin are awaiting the start of the premium processing option for I-140 immigrant petitions for foreign national workers, which is NOT yet available. According to all indications from USCIS, however, it should be announced soon. In anticipation, we are evaluating the possible benefits of using premium processing for I-140 petitions. Part 1 of this article addresses matters relating to filing H1B extensions. Part 2, which will appear in next week's MurthyBulletin, will discuss issues relating to the "green card," or permanent residency processing.
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Premium Processing Defined
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As our regular readers know, for an additional fee of $1000, the USCIS will process the designated form within 15 calendar days of receipt. This is called Premium Processing. While a decision will not necessarily be issued in 15 days, a USCIS officer will review the application and determine the appropriate action. In many instances, this action could be an approval. The officer could issue any of the following, however: a request for further evidence (RFE), a denial, a Notice of Intent to Deny (NOID), or a notice of fraud investigation. If the notice requires an applicant to respond with additional evidence and/or legal argument, the USCIS is supposed to make a final decision within 15 days of receipt of the response.
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Eligibility for I-140 Premium Processing
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Once premium processing is initiated, this service will be available for the following employment-based immigrant visa classifications:

• EB1 Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Executives and Managers
   
• EB2 Professionals with Advanced Degrees or Exceptional Ability who are NOT seeking a National Interest Waiver
   
• EB3 Professionals and Skilled Workers

Note that I-140 premium processing will NOT be available for National Interest Waiver (NIW) petitions. NIW petitions are complicated and require significant time for detailed review. Although many Extraordinary Ability (EA) and Outstanding Professor / Researcher (OPR) cases are similarly complex, they will be eligible for premium processing.
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Analysis : Pros and Cons of Premium Processing and H1B Extensions
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Premium processing means one will receive an I-140 decision in an expedited fashion. This is beneficial to those who want to take advantage of AC21 portability or some of those who need extended time in H1B status.
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One-Year Extensions  Generally, H1B status is granted for up to six years. If an H1B worker has had a labor certification (LC) or an I-140 filed 365 days prior to the expiration of the six years, however, the H1B employer may file to extend the H1B status for that employee beyond the 6th year. These H1B extensions are issued in one-year increments. This would not be impacted by premium processing, generally, since it is measured from filing time, not the date of approval. If the I-140 petition has possible problems, a person in this situation may be disadvantaged by using premium processing for the I-140 petition. The H1B extension would not be possible under this rule if the I-140 petition were to be denied, unless the denial was appealed. Thus, using premium processing and expediting a denial would not make one eligible for a three year extension, and it would make the one-year extension more difficult.
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Three-Year H1B Extensions  A second manner in which to obtain H1B extensions beyond the 6-year limit grants the extensions in three-year increments. In order to be eligible for the three-year extension, the H1B worker must be the beneficiary of an approved I-140 petition and the case must be subject to retrogression (nonavailability of visa numbers). In this situation, the employer may request an extension of the H1B status beyond the 6th year, in three-year increments. In this situation, I-140 premium processing would potentially provide an advantage to the long-time H1B worker, as well as to the H1B employer. By gaining the I-140 approval, one is able to obtain the H1B extension for three years. This is more advantageous than one-year H1B extensions in terms of expense and effort. It also avoids other inconveniences associated with the one-year H1B extensions, including repeated one-year driver's license renewals required in some states to match one's length of status.
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One-Year Filing Rule Does Not Apply if I-140 Petition is Approved  There is some misconception on this issue. Some people confuse the rules and incorrectly surmise that the three-year H1B extension rule requires that the LC was filed at least one year prior. In fact, the rule that allows for a three-year H1B extension, based on an I-140 petition approval and the retrogression of dates, does not have a 365-day requirement. It is sufficient for one to have the I-140 approved and the priority date retrogressed. Thus, by using the PERM labor certification process (or a labor-exempt category or labor substitution) and I-140 premium processing, an individual potentially could be eligible for a three-year extension of the H1B in less than 365 days time. This could be very helpful in many situations, including those where an older green card case is denied and a new green card case can be filed within time to permit an extension of the H1B.  
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Conclusion
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Premium processing can be a valuable, strategic tool in connection with three-year H1B extensions. There will be many cases in which the advantages outweigh the cost. Once the option to have one's I-140 premium processed becomes available, this filing should be carefully considered with an experienced and qualified immigration attorney.