USCIS further Expands Premium Processing for I-140 Petitions

(written on 2/26/2009)
By Paul Szeto, Esq.

Recently, the U.S. Citizenship and Immigration Services (USCIS) announced that it will expand Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include certain alien beneficiaries who have or will come to the end of their H-1B work visa status. This is a further step of the government to help foreign workers whose immigrant petitions are delayed due to the unavailability of visa numbers. Specifically, the change will allow those workers who have reached, or are reaching, their authorized stay in H-1B nonimmigrant status to employ Premium Processing Service when filing their I-40 visa petition.
Beginning March 2, 2009, alien workers who meet the following criteria will be allowed to file their I-140 visa petitions with the I-907 Premium Processing Service application:
• Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• Are ineligible to extend their H-1B status under section 106(a) of AC21.
Most of the employment-based visa petitions in the first, second and third preferences (EB1, EB2 & EB3) are eligible for Premium Processing Services with the exception of the EB1 Multinational Company Executive/Manager petitions and EB2 Exceptional Alien Petitions seeking a National Interest Waiver. These last two categories of applications must still file their petitions under regular processing.

Under the current policy from June 16, 2008, only alien beneficiaries who are in H-1B nonimmigrant status at the time of filing may request premium processing for Form I-140. The new policy expanded the service to those who are not currently in H-1B status to use the service. More foreign workers will be able to benefit from this expanded service.

Premium Processing Service provides faster processing of certain employment-based petitions and applications. Specifically, USCIS mandates 15 calendar day processing time to those who choose to use this service or USCIS will refund the Premium Processing fee and the relating case will continue to receive faster processing. The 15 calendar day period will begin when a properly completed Form I-907, Request for Premium Processing Service, is received by USCIS at the correct filing address noted on the form. A fee of $1000 is also required. Within the 15 day calendar period USCIS will issue an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation.

It is important to understand that Premium Processing Service merely guarantees that a decision will be made; it does not guarantee an approval or somehow increase the chances of getting an approval. Nevertheless, it has been our firm’s experience that payment of the $1000 for Premium Processing is worthwhile because of the extra attention and services that we receive. Designated group of personnel will be devoted to working on these cases. Inquiries are usually timely responded. Petitions, assuming they meet all requirements, are usually approved within a few days.

The new policy is no doubt good news for those who needed a faster approval of their I-140 petition to qualify to AC21 extension. Given the current retrogression of visa numbers, it is expected that many applicants will take advantage of this expanded services. One possible drawback, however, is that the processing of regular (non-premium) cases could be delayed as premium services might take up substantial amount of government resources. Interested applicants must carefully weigh their options and make correct decisions according to their specific situations.


(Paul Szeto, an Immigration lawyer and a former INS attorney, regularly writes on immigration issues. His contact info: 732-632-9888, www.szetolaw.com)