Premium Processing Not Available for Substitution Cases
Posted May 25, 2007
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The USCIS has terminated premium processing for I-140 Employer Petitions for cases requesting the substitution of beneficiaries. This termination was effective on Friday, May 18, 2007, and is the result of the publication of the long-expected U.S. Department of Labor (DOL) regulation terminating labor substitution cases. More information on that regulation is available in our May 16, 2007 NewsFlash! LC Substitution Elimination Reg Effective July 16, 2007, available on MurthyDotCom.
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USCIS Expects Many LC Substitution Filings until July 15, 2007
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Since the filing of Labor Certification (LC) substitution cases will end on July 16, 2007, it is anticipated that there will be a great number of such filings between May 18th and July 15, 2007. The USCIS's premium processing program (PPP) provides expedited review of a case within 15 calendar days in exchange for a $1000 USCIS filing fee surcharge. The USCIS will be unable to meet premium processing deadlines for these cases and, therefore, will be unable to offer the service. Premium processing was previously available for those substitution cases where the original labor certification was available and sent with the I-140 petition filing.
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Eligibility to File Unaffected - Even if PPP is Not Available
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The preamble explanation of the regulation that eliminates labor substitution provides that all cases requesting labor substitution that are pending at the I-140 stage before July 16, 2007 will be unaffected. Thus, it should not be necessary to use the PPP to expedite a decision in a substitution case in order to "beat" the effective date of the regulation. It should only be necessary to get the case filed before the regulation becomes effective and eliminates labor certification substitutions. There is some debate on this topic, due to the wording used in the actual regulation. However, the DOL has advised, both in writing in the explanation of the regulation and orally at an AILA meeting, that it would be sufficient to file the substitution cases before July 16, 2007, and that approval prior to that date is not needed.
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PPP Continues for Many Nonimmigrant and I-140 Cases
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This USCIS decision does not impact the availability of premium processing for other types of eligible cases. This includes previously-eligible I-140 cases, as well as certain nonimmigrant cases. So, this change in the PPP will not impact the widely used premium option available for H1Bs, L-1s, and most other types of I-140 petitions, like the Extraordinary Ability, Outstanding Professor / Researcher, employment-based second or third preference petitions using labor certification, I-140s for other workers, etc. (Notable exceptions that cannot take advantage of the PPP are national interest waivers and, now, labor certification substitution cases).
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Conclusion
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We at the Murthy Law Firm hope that the PPP will be available in the near future for all I-140 petitions. This would enable employers and employees to make good use of this benefit that helps them to obtain expedited decisions and allows the USCIS to collect much needed revenue to provide better services overall.