Premium Processing to Expand : I-140s, I-539s, and I-765s
Posted May 26, 2006
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The USCIS issued a notice in the Federal Register on May 23, 2006 expanding the types of cases that will be eligible for the Premium Processing Service. The current premium processing program provides expedited case review of certain employment-based nonimmigrant cases in exchange for an additional USCIS filing fee of $1,000.
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The Federal Register Notice designated three widely-used forms for eligibility for the Premium Processing Service. These are the I-140 (Immigrant Petition filed by the employer for an employee), the I-539 (Change of Status Application), and the I-765 (Employment Authorization Application). The designations for the program are effective immediately, but the timeframe for premium processing to be made available for each type of case is yet to be determined. No indication was given as to when the procedure is likely to become available, but we will watch for further updates on this matter. The Murthy Law Firm was among the first to announce the likelihood of this change in our May 19, 2006 MurthyBulletin article, Premium Processing for I-140 Petitions Anticipated, available on MurthyDotCom.
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The procedure will be the same as already exists for certain nonimmigrant cases. The Form I-907 will be used to request premium processing, accompanied by a filing fee of $1,000. In exchange for this additional filing fee, the USCIS will review the case within 15 days of receipt. The USCIS could reach a decision within that timeframe or they could issue a Request for Evidence (RFE). If an RFE is issued, the USCIS has 15 additional days after receipt of the RFE response to make a decision.
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Form I-140
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Form I-140 is filed as part of the employment-based green card process. It is generally filed after the approval of a labor certification, but can be filed without a labor certification in certain types of cases. These limited cases include the Schedule A for nurses and physical therapists, EB2 National Interest Waiver (NIW), and EB1 for persons of Extraordinary Ability, Multinational Executive Transferees and/or Outstanding Professors / Researchers.
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The Federal Register Notice indicates that, due to their complexity, National Interest Waiver (NIW) cases will not be eligible for premium processing. The EB1 cases, which also can be exhaustive and complex, are eligible. All other EB2 or EB3 labor certification-based I-140s will be eligible for premium processing.
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Form I-539
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The I-539 is an application for change or extension of status. This is used by persons in many nonimmigrant categories to change or extend their temporary statuses. It is often used for dependant (family member) categories, but not exclusively. The USCIS has designated the premium processing procedure for specific case types that utilize the I-539. Notable is the absence on the list of F-1 students and their F-2 dependants. Included as eligible for premium processing are: B-1 visitors, J-1 exchange visitors and their J-2 dependants, E-1 treaty traders and E-2 treaty investors, H-4 dependants of H1Bs, L-2 dependants of L-1s, O-3 dependants of O-1s, P-4 dependants of P-1s, R-2 dependants of religious workers, and TD dependants of TNs.
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Form I-765
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The I-765 is an application for Employment Authorization Document (EAD). The premium processing procedure will be available to EAD applications based upon the fact that the individual has an I-485 (Application for Adjustment of Status) filed. This is one of the most common eligibility grounds for an EAD, but is not the only way to be eligible for the EAD. The ability to premium process the I-765 will be an enormous benefit to eligible foreign nationals and their employers. There are many situations in which the I-765 is desperately needed in order for the individual to be permitted to work. While it is always best to file far enough in advance to avoid a problem, this is not possible for people filing the I-485 and I-765 for the first time. Additionally, due to a variety of factors, the I-765 for a renewal often is not filed far enough in advance. Therefore, we anticipate that many will want to utilize this service to either obtain the ability to work or to preserve their ability to work, in exchange for the $1000 premium fee.
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CONCURRENTLY-FILED NONIMMIGRANT CASES
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EADs
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In certain instances, the approval of one case depends upon the approval of a different case. One such situation is the I-765 EAD application, filed in connection with certain types of I-539s. The L-2 is one such category that permits the dependant spouse to obtain an EAD. As a courtesy, the USCIS will permit concurrent filing of I-539s with I-765s in premium processing cases. The USCIS will not guarantee that the I-765 will be processed within the premium processing limit. As mentioned above, this type of EAD would not be eligible for premium processing on its own, since it is not based on an I-485 filing.
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Concurrent I-129 / I-539s
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Approval of one case before the approval of the other is possible also applies to many of the dependant I-539s. For example, the approval of an L-2 extension for a dependant spouse relies upon the approval of an L-1 extension for the primary spouse. The same is true of the H1B and H-4. Under current procedures, if the I-129 (Petition for Nonimmigrant Worker) is filed using premium processing, and is accompanied by the I-539 for family member/s, the USCIS will also process the I-539 within the premium processing timeframe. This held true even though, prior to the Notice of May 23, there was no premium processing for I-539s.
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The USCIS advises that they will continue this courtesy, even once premium processing of I-539s becomes available. Thus, a couple can usually obtain premium processing of both the primary and the dependant nonimmigrant case for a single fee of $1,000, if the cases are filed together and the primary requests premium processing. There is no guarantee, however, of this timeline for the I-539, and the $1,000 fee will not be refunded if it is not met for the dependant case, since it is really only being paid for the primary applicant's case.
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Conclusion
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The ability to use premium processing for more types of cases opens many possibilities and new strategies. As under the current premium processing system, this broader availability for other case types will provide solutions to difficult or time-sensitive problems. Of course, it comes at an additional cost of $1,000, plus the other immigration-related fees and costs. There will be many situations, and many individuals, however, in which and for whom the benefit will outweigh the cost.
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