Premium Processing for I-140 Petitions Anticipated
Posted May 19, 2006
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In a mid-April 2006 meeting between representatives of the American Immigration Lawyers Association (AILA) and those of the Nebraska Service Center (NSC), there was brief but significant discussion regarding the possibility of premium processing for I-140 Immigrant Worker petitions. Many of our readers have contacted the Murthy Law Firm about premium processing for I-140s, as this initially was discussed at the same time as the H1B premium processing system, but was put on hold for several years. Now it appears that it may become a reality in the near future. Premium processing is a procedure that provides expedited case processing in exchange for an increased filing fee. In the nonimmigrant context, premium processing means that cases are reviewed within 15 days of filing, in exchange for an additional USCIS processing fee of $1,000.
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Announcement Expected in May 2006
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Although the fact that premium processing will begin was discussed in the April meeting, there was no firm indication as to when. There could be an official announcement as early as May 2006, however. It was mentioned that premium processing of I-140 petitions could mean the end of concurrent I-140/I-485 filings. Additionally, I-140s filed using the National Interest Waiver (NIW) provisions will probably not be eligible for premium processing. Presumably, this is because of the complexity of NIW cases, which means that this limitation could also be extended to somewhat similar Extraordinary Ability and Outstanding Professor / Researcher cases.
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Pros and Cons of I-140 Premium Processing as Proposed
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The premium processing procedure in the nonimmigrant context has been a valuable tool in many cases. The elimination of concurrent filings would mean that certain benefits that result from concurrent filing would also end. Included among such benefits are: earlier AC21 portability, earlier Employment Authorization Document (EAD) and Advance Parole (AP) eligibility, and, for some, the ability to file the I-485 at all because of status problems that sometimes arise while awaiting an I-140 approval. The concurrent filing  of I-140s/I-485s has been permitted since July 2002. As a practical matter, however, it has not been possible in many cases for the last year, since retrogression hit the EB3 category in January 2005 and moved to the EB2 and EB1 categories in October 2005. It is not clear if the proposed elimination of concurrent filing in connection with I-140 premium processing is reflective of insufficient help at the USCIS, or if it is an effort to create an incentive for those who can to use the premium processing service.
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One of the greatest benefits of using premium processing for I-140 petitions may be to avail oneself of §104(c) of AC21 to obtain 3-year extensions of H1B status. Under that provision, if a beneficiary has an approved I-140 petition but cannot complete the green card process due to retrogression, s/he can apply for a 3-year extension of H1B status at the end of the six-year H1B limitation period.
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Conclusion
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As of this writing, premium processing is not available for I-140s. As premium processing for I-140s would be a significant change in immigration procedure, we will be sure to share any updates with MurthyDotCom and MurthyBulletin readers as soon as there is an official announcement on this topic.