Detailed Analysis of Premium Processing for I-140s (Part 2)
Posted Aug 04, 2006
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In our July 28, 2006 MurthyBulletin, Part 1 of this article, available on MurthyDotCom, discussed some of the pros and cons of I-140 premium processing as it relates to H1B extensions. Part 2 addresses the I-140 premium processing as it relates to green cards. Once again, as of this writing, I-140 premium processing is NOT yet available. It is anticipated in the near future, and will be announced to our readers once it becomes a reality. For those unfamiliar with premium processing, it would be helpful to read the above-referenced article.
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Summary of Premium Processing Procedures
Premium processing is a procedure by which the U.S. Citizenship and Immigration Services (USCIS) will review a particular application / petition within 15 calendar days of receipt. The fee for this expedited service is $1,000. Once it goes into effect for I-140 petitions, all EB1, EB2, and EB3 filings will be eligible, with the exception of National Interest Waiver cases.
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Analysis : Pros and Cons of Premium Processing
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AC21 Portability
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Obtaining approval of an I-140 petition in an expedited manner can be beneficial to those who want to take advantage of AC21 green card portability. AC21 portability allows for the approval of an employment-based green card case based upon a job offer from an employer other than the employer that filed the labor certification and/or I-140. The new job must be in the same or similar job category. In order to safely use AC21 for this purpose, the labor certification (where required) and I-140 must be approved, and the I-485 must be pending at least 180 days. (While we are aware that AC21 portability still applies even if the I-140 is approved after the job change, since it must be approved in order for the green card case to be approved, we think it is best not to change jobs until the approval is issued.) Thus, the ability to expedite the I-140 decision can mean that the eligibility for AC21 portability will arise earlier, and that the change of employers will be safer. Premium processing can also offer some benefits unrelated to AC21 with respect to employment flexibility.
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Approved I-140s and Job Mobility - Transfer of the Earlier Priority Date
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The priority date from an approved, valid I-140 petition may be transferred to a new I-140 petition. This is another situation in which premium processing would prove advantageous. Since I-140 premium processing would allow for faster approval of the I-140 petition, the priority date potentially then would be available for transfer to a later-filed employment-based green card case, at the I-140 stage. This later-filed I-140 petition could be with the same employer (for a different job) or with a new employer in a new position.
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[Editor's Note : The provisions for transfer of the earlier priority date are unrelated to AC21 portability. Having solely an approved I-140 petition (without an I-485 that has been pending for 180 days) does not give the individual eligibility for AC21 green card portability. We have received some questions about the job mobility referred to in the caption of this subsection, and want to be absolutely clear that we are not referring to AC21 portability. Changing jobs after approval of an I-140 where an I-485 has not been filed means that the green card case will have to start over, right from the labor certification (LC) stage in LC cases. However, it is possible to request to retain the priority date in a later I-140 petition, once there is an approved I-140 petition in an earlier case with a different employer or even for a different position with the same employer. Therefore, an approved I-140 petition has a potential advantage for those who seek to change employers or jobs, but it is not as big of an advantage as having AC21 portability.]
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Transfer of the Earlier Priority Date : EB3 to New EB2
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The ability to transfer priority dates from an earlier, approved, I-140 to a later-filed I-140 could provide an alternative for job mobility, both within the current employer's organization or with a new employer. This would be helpful for those who want to make a change but are not eligible to file the I-485 application because of retrogression. It also could help people who are eligible to change from an EB3 classification to EB2. One would be eligible to request a transfer of the priority date from the earlier-filed EB3 petition to a new EB2 petition once the I-140 is approved. The new EB2 petition would need to be based upon a new LC for a position requiring the EB2 level of education and/or experience. (Over time, many people with EB3 cases have become eligible for EB2 cases due to increased experience and/or education, and promotions.)
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This strategy potentially could shave off a few years in the queue for available immigrant visa numbers. This may be particularly appealing to those who had EB3 labor certifications filed on their behalf long ago and have had their cases pending while they have gained advanced degrees, acquired several more years of experience, and/or are offered jobs at higher levels. Keep in mind, though, that this involves filing a whole new LC under the PERM system for a new job opportunity and that the employer must actually require the additional degree and/or experience for all persons holding that job classification in order for the new case to be filed as EB2.
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I-140 Premium Processing and the Possible End of Concurrent Filing
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Indications are that, in the near future, the USCIS will discontinue the combined processing of I-140 petitions and I-485 applications for adjustment of status. This process of combined filing is referred to as “concurrent filing.” Those affected by retrogression have been unable to take advantage of the concurrent filing of an I-485 with the I-140 for quite some time. The possible end of concurrent filing will affect all categories of workers, from all countries, and will be a return to the system that previously was in place. This means that the I-140 petition will have to be approved before the I-485 can be filed. The filing of the I-485 or adjustment application will still require that an immigrant visa number be available in the particular category. So, the approval of the I-140 petition alone will not necessarily mean that the I-485 can be filed. However, there would be instances where the ability to obtain an I-140 approval would be extremely helpful, and would allow an I-485 could be filed at a point when the visa numbers were available, since the cut off dates can move backwards as well as forwards. We at the Murthy Law Firm will keep our readers informed if and when concurrent filing ends. Indications are that the end of concurrent filing will coincide with the start of I-140 premium processing.
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The possible end of concurrent filing will mean that applicants for permanent residence cannot submit their I-485 applications for adjustment of status until their respective priority dates are current and their I-140s have been approved. Thus, one with a current or soon-to-be available priority date, premium processing of the I-140 would expedite the I-485 filing eligibility.
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I-140 and Consular Processing
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Another possible option with I-140 premium processing is to select consular processing. For persons with priority dates that are current or close to current, this may be worth considering. If consular processing is selected as an alternative to the I-485 filing, the case potentially could be completed faster than an I-485. The visa number would need to be available for the issuance of the immigrant visa at the consulate abroad. Some people will try to use consular processing in a race to get their cases approved during a time when visa numbers are available. This strategy was often used in the past. It was more advantageous before AC21, however. Since AC21, there is possible job mobility after the I-485 is filed. On the other hand, if consular processing is selected, and the visa numbers become unavailable, the case is not portable to a new employer if the person never filed the I-485.
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Cons of I-140 Premium Processing
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The implementation of premium processing may cause delays in the processing of other I-140 petitions that are filed without the payment of the additional $1000 premium fee. This happened when premium processing was implemented for the I-129 nonimmigrant worker petitions in June 2001. A February 2003 Audit Report found that the premium processing program caused delays in processing routinely-filed cases.
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With a large number of employers and/or beneficiaries paying an extra $1000 to have their I-140 petitions adjudicated in 15 days, those who do not pay a premium may find that it takes longer than usual to have their I-140s reviewed and adjudicated. Nevertheless, paying an extra $1000 for an I-140 is not necessary for those who are in the first few years of H1B status and who intend to remain with their I-140 sponsors, at least for the immediate future.
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What Premium Processing Does NOT Do
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Even though premium processing means getting an I-140 approval more quickly, and thus, potentially, three-year extensions in H1B status, for those affected by retrogression it does NOT guarantee that an applicant will get a green card sooner. In order to file the I-485, one still must wait until his or her priority date is current. At this time, premium processing is NOT available and is not expected to become available for I-485 applications for adjustment of status to permanent resident.
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Conclusion
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Premium processing of I-140 petitions can be a valuable, strategic tool in many situations. There will be many cases in which the advantages will outweigh the cost. We do hope that it will not increase regular I-140 processing times, disadvantaging those who cannot afford it or those who chose not to use this service.
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