EB3 I-140s Premium Processing and its Restrictions
Posted Aug 25, 2006
©MurthyDotCom
Premium processing for all EB3 cases, except for "other workers," will be available as of August 28, 2006. MurthyDotCom and MurthyBulletin readers were advised of this in our August 18, 2006 NewsFlash, entitled, Premium Processing of EB3 I-140s Starts Aug 28, 2006. Thus, persons with EB3 cases, who can benefit from expedited I-140 adjudication, will be able to obtain this service, for a fee of $1000. Although EB1 and EB2 cases are not yet eligible, the premium processing procedure is slated to expand to EB1 and EB2 cases in the future. The USCIS, however, will not allow for premium processing of the more complex National Interest Waiver cases.
©MurthyDotCom
Review Pros and Cons of Premium Processing I-140 Petitions
©MurthyDotCom
Those who are considering premium processing should review our comprehensive article on this topic, Detailed Analysis of Premium Processing of I-140s, Part 1 (July 28, 2006), and Part 2 (August 4, 2006), available on MurthyDotCom, as well as our most recent article, #2 in today's MurthyBulletin, Premium Processing I-140 : Problematic for Aging Out Children. While it is beneficial in many situations, there are times when utilizing premium processing for an I-140 petition is ill-advised or simply does not provide any real benefit.
©MurthyDotCom
Some EB3 Cases Ineligible to Premium Process I-140s
©MurthyDotCom
The USCIS provided further clarification and instructions on I-140 premium processing following the initial announcement. They listed three types of cases that are not eligible for premium processing, even if they are within the EB3 preference category. These are:

• a second I-140 filing, if an initial I-140 remains pending
   

• a labor certification substitution request
   

• a duplicate labor certification requests (i.e. those cases where the original labor certification is not included)

These cases simply have additional processing requirements that cannot be met within the premium processing timeframe. These exceptions are in addition to the EB3 “other worker” cases which, as mentioned above, are not eligible for premium processing.
©MurthyDotCom
Only Employer or Attorney May Request I-140 Premium Processing
©MurthyDotCom
An I-140 premium processing request must come from the employer or the attorney for the employer. According to the instructions provided, the fee may be paid by the foreign national beneficiary, the petitioning employer, or the attorney. Unless the I-140 is a self-petition, however, only the petitioning employer or the petitioner's attorney can file the premium processing form. Self-petitioning is only available for Extraordinary Ability (EB1) and National Interest Waiver (EB2/NIW) cases. NIW cases will not be eligible for Premium Processing, in any event.
©MurthyDotCom
Conclusion
©MurthyDotCom
We will continue to advise MurthyDotCom and MurthyBulletin readers as premium processing for I-140s expands beyond EB3. We know that many are anxiously awaiting this expansion to the other employment-based categories.