Premium Processing Expanded to Multinational Manager and NIW I-140 Petitions

USCIS announced today the following expansion of premium processing services: 

• Beginning June 1, 2022, USCIS will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021.
• Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1,2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
• USCIS will reject premium processing requests for these classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time.

On May 23, 2022, USCIS will publish a new version of Form I-907, dated 05/31/22.  The new I-907 must be used starting July 1, 2022. With this expansion, all immigrant visa petitions will be eligible for Premium Processing Services. The current additional filing fee for Premium Processing Services is $2500 for Form I-129 and I-140 petitions.  

One frequently-asked question from the public is this:  If I pay the additional fees for Premium Processing services, does it help my case or get it approved faster? Premium Processing Service does not guarantee or increase the chances of approval of a case. It only guarantees that USCIS will make a decision on an application or petition. The decision can be an approval notice, a denial notice, a notice of intent to deny, or a request for evidence, within a fixed processing timeframe. Of course, if your case is approval anyway, use of premium services does enable you to get a faster approval. 

For most I-129 (nonimmigrant employment) and I-140 (employment visa),  the processing timeframe is 15 days.  For E13 multinational manager and E21 NIW petitions mentioned above, the processing timeframe will be 45 days.

It is important to note that only initial filing of an application or petition is eligible for Premium Processing Service.   While a petition or application is pending, parties may also request for Premium Processing Service before a final decision is made on the applicable petition or application.  However, Premium Processing Service is not available on a petition or application that is reopened after an initial decision was made on the petition or application.

The other advantage of using Premium Processing Services is access to a dedicated team of premium services immigration officers.  The petition and applicant may contact these officers about their cases without going through the USCIS Contact Center.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Multinational Manager Green Card "1-in-3" Rule Tightened

Multinational managers seeking a green card under the EB-1C classification will fail if there is a gap in employment in excess of two years with the petitioning company after entering the U.S., according to a recent Policy Memo issued by USCIS dated March 19, 2018.

What is the EB-1C immigrant visa status? It can be used by a multinational company seeking to bring a high-ranking executive or managerial employee to work permanently in the United States. The employee would normally be transferred from their position in a foreign affiliate to the U.S., although he or she could already been working for the U.S. company in an nonimmigrant visa status. Approval of the EB-1C visa status would make the employee eligible for a U.S. green card. But don't confuse EB-1C with the related non-immigrant L-1A employment visa status, which is temporary in nature.

Aside from proving the employee's eligibility as an executive or managerial worker, there are further requirements to attain the EB-1C visa status. The "one-in-three" rule imposes strict guidelines on the beneficiary's employment time frame. The rule requires that the beneficiary must have worked at least a year for the petitioning company's foreign affiliate within the last three years prior to admission to the United States.  USCIS has interpreted this rule to mean that the three-year reference period is the three years immediately prior to the date of admission of the worker.  Hence, the employee could already be working for the U.S. company for three years and still be eligible for an EB-1C visa. 

A recent USCIS AAO decision, Matter of S-P-, Inc., (adopted as policy memo) further clarifies that any periods of employment under a different company or even unemployment after the date of admission could break the "1-in-3" rule for EB-1C petitions.  Specifically, this means that once the transferee worker arrives the U.S., if he or she stops working for the affiliated U.S. petitioning company for longer than two years, the worker will no longer be eligible for EB-1C status.

It is important to note that the old rule still applies. In other words, if there is no discontinuity between working for the foreign affiliate and the petitioning company, there is no need to worry about the one-in-three rule when applying for EB-1C. Also, the date of entry looked at has to be for the purpose of working for the multinational company. Other date of entries do not qualify. Claiming an older date of entry as the starting point for counting one-in-three years of employment does not work. This is regardless of whether or not the beneficiary worked the year before the date of entry -- once there is an interruption of employment, only the time frame of the most recent three years is looked at.

This may seem complicated at first, but it makes sense when looking at the purpose of EB-1C status. It is meant to help U.S. companies bring in key employees from their foreign affiliates to support the business. Having large gaps between working for the two associated companies detracts from the employee's credibility as a long-term and high-level executive or manager. 

Those seeking the similar L-1A nonimmigrant visa could also face the same restrictions. Although not specifically mentioned, USCIS will likely apply the same rationale when dealing with employment interruptions in adjudicating the L-1A applications. This ruling reminds multinational companies to plan on a longer time scale when it comes to moving their key employees to the U.S.