Overview of USCIS Premium Processing Program

Longtime readers of MurthyDotCom know about the U.S. Citizenship and Immigration Services (USCIS) Premium Processing Service, which allows for the expedited case processing of certain designated immigration petitions. This overview of the ins and outs of how premium processing operates includes the benefits and limitations of this service.

Premium Processing Requires Additional Fees

Requests for the optional Premium Processing Service are made using the I-907 form, which must be accompanied by the appropriate filing fee. As of this writing, the fee is $1,225. This is in addition to the mandatory filing fees for the particular case.

USCIS Agreement to “Process” Case Within 15 Days

In exchange for the premium processing filing fee, the USCIS commits to processing the petition within 15 calendar days. If the USCIS fails to process the petition within the prescribed period, the premium processing fee will be returned by the USCIS, but expedited processing of the petition will continue. As explained below, processing a case within the 15-day window does not always mean a decision will be reached within that timeframe.

Meaning of Case “Processing” Within 15 Days

It is important to note that, under the terms of premium processing, the commitment to processing cases within 15 calendar days does not necessarily mean that the case adjudication will be completed within those 15 days. Rather, the USCIS commits to taking one of a number of specified actions within the 15-day period.

These actions are: issuing an approval or denial notice; issuing a request for evidence (RFE) or a notice of intent to deny (NOID); or commencing an investigation for fraud or misrepresentation. If the government issues an RFE or a NOID, the petitioner must file a timely response. The USCIS has an additional 15 calendar days to process the case following the receipt of the timely response to the RFE or NOID.

15-Day Clock Starts When I-907 with Fee is Received

The 15-calendar-day period for USCIS action under premium processing begins when the current version of the Request for Premium Processing Service (I-907 form), along with the premium processing fee, is filed with the USCIS. The I-907 can be submitted with the particular filing or may be submitted later, once a receipt notice is issued. That is, it is possible to file a case under the standard filing process and, later, to upgrade the case to premium processing.

EB Petitions Eligible for Premium Processing

• The Premium Processing Service is available for several employment-based nonimmigrant categories, including H1B and L-1 petitions.

• Many employment-based immigrant categories are eligible for premium processing, as well.

• Notable exceptions to this, however, are the EB1 category for multinational executives and managers and the EB2 category for those seeking a National Interest Waiver.

In 2011, the USCIS indicated that it would soon start accepting premium processing for multinational executive and manager cases; however, this has not yet come to pass, and the USCIS has since stated that premium processing will not be implemented for these petitions “for the foreseeable future.”

The latest information regarding the filings eligible for premium processing is available on the USCIS WebSite.

Premium Processing Benefit Limited to Specific Petition

The expedited Premium Processing Service is limited to the immigrant or nonimmigrant petition in the particular case. It does not apply and is not available for other filings that may be required for or related to certain classifications. For example, if an H1B petition that has been filed using premium processing is denied, the Premium Processing Service does not apply to any motion or appeal that may be filed to challenge the decision. Similarly, if the H-4 application for dependents is filed after the H1B filing, then the H-4 dependents’ cases are not premium processed.

The same holds true for the labor condition application (LCA), which must be approved prior to an H1B filing. The LCA is processed by the U.S. Department of Labor (DOL) under a standard 7-business-day timeline, without regard to the intent to utilize the USCIS premium processing service. Similarly, in the permanent resident (commonly referred to as “green card”) context, it is only the I-140 employer petition that may be eligible for premium processing. Related case filings, such as PERM labor certifications, adjustment of status (I-485) applications, and applications for employment authorization documents (EADs) and advance parole (AP), are adjudicated within the standard, non-premium timeframes.

Dependents Generally Processed with Principal Applicant

Cases filed for dependent family members are often processed within the premium processing timeline, if filed at the same time as the primary family member’s case. A dependent family member of a nonimmigrant worker generally must file the I-539 to extend or change status in the United States. Premium processing is not available for I-539 applications. However, if the I-539 is filed concurrently with the principal’s I-129 petition using premium processing, the USCIS typically expedites the processing of the dependent’s application, as well. This is limited to concurrently filed cases, as explained above. Hence if the case is not filed concurrently, then the H-4 dependents are processed within standard processing times, which is often several months longer.

It should also be noted that this expedited treatment of dependents is not required under the Premium Processing Service. The USCIS therefore is not obligated to refund the premium processing fee if there are delays in cases filed for dependents.

Benefits of Premium Processing

There are many benefits to the Premium Processing service. These include:

• It is useful for those seeking to change employment in a nonimmigrant category. It is often necessary, or at least advisable, to have an approval in hand with one’s new employer before terminating employment with one’s current employer.

• It can be useful to expedite decisions when status issues are looming.

• In the green card context, the I-140 approval may make an individual eligible for the three-year H1B extension, as well as other benefits.

• The Premium Processing Service allows for much easier access to the USCIS, in the event it is necessary to discuss issues relating to the case.

Conclusion

The Murthy Law Firm has utilized premium processing in a large number of cases over many years. Premium processing can provide a great convenience to foreign nationals and their employers. This service can also be used strategically. Many of the fears of higher rates of RFEs or denials under the Premium Processing Service are generally unfounded. Premium processing can be vital in some situations, when it is necessary to obtain a fast decision. It is best to obtain assistance from a qualified immigration attorney when deciding whether premium processing might be beneficial in a particular case.

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