In an interim rule published in the Federal Register today, the U.S. Citizenship and Immigration Services (USCIS) announced that the popular Premium Processing program would be expanded to include some petitions for immigrant workers (Forms I-140), applications to extend or change status (Forms I-539), and certain applications for work authorization (Forms I-765). The USCIS has not specified the effective date of this change.

Under the present system, only certain non-immigrant visa petitions (Forms I-129) are eligible for Premium Processing.  Under Premium Processing, for a surcharge of $1,000, the USCIS will either approve, deny, or issue a Request for Evidence (RFE) within 15 days of receiving the application or petition. Premium Processing has been helpful, for example, for U.S. employers who often cannot wait two to three months to have an H-1B adjudicated.

The specific petitions/applications which will be eligible for Premium Processing under the new rule are the following:

1.  Form I-140: Petition for Immigrant Worker.  This is typically filed after the alien employment certification (AEC) application has been approved by the U.S. Department of Labor.  In certain cases, for Category Employment-Based 1 (EB1) Priority Workers, the I-140 can be filed directly with the USCIS without first having an approved alien employment certification.  The following I-140s will be eligible for Premium Processing: those based on an approved AEC and those based under EB-1 (Aliens of Extraordinary Ability, Outstanding Researchers & Professors, Multinational Managers & Executives).  National Interest Waiver I-140s, however, will not be eligible for Premium Processing.

2.  Form I-539. This application is typically filed by individuals seeking an extension of stay. It is also often utilized by dependents of H-1B workers (H-4 classification), dependents of L-1 intracompany transferees (L-2 classification), and dependents of TNs (TD classification).  The USCIS has not specified the effective date of this change.

3.  Form I-765.  This is the form utilized to request work authorization.  For example, when a student on an F-1 visa is authorized to apply for optional practical training, the student must file a Form I-765 to obtain an Employment Authorization Document (EAD).  However, premium Processing is not being extended to all I-765 applications.  According to the notice, Premium Processing will only be available to I-765s that are filed to renew an EAD that was issued to a person applying for adjustment of status (AOS) based upon an employment-based immigrant visa petition. AOS applicants who are sponsored by family members, or who are applying under the Diversity Visa Lottery are not eligible for Premium Processing of the I-765.  Further, only extensions of EADs may be premium processed, initial EAD applications are not eligible for Premium Processing.  Even with these limitations, issuance of an EAD card within 15 calendar days would be a significant benefit to employers and applicants, as these applications can often take more than 90 days to be processed. The USCIS has not specified the effective date of this change.

The one negative item in the interim rule relates to Forms I-539 filed simultaneously with Forms I-129.  Under the current system, if a U.S. employer requests Premium Processing for a Form I-129 and includes a Form I-539 to change the status or extend the stay of dependent family members, the USCIS will premium process both the I-129 and the I-539 simultaneously.  In the interim rule, however, the USCIS states that they have been doing this as a "courtesy." Although the USCIS suggests that they will continue to process I-539s under Premium Processing when the I-129 is filed simultaneously, Premium Processing of the I-539s is not guaranteed. If guaranteed 15 day turnaround of an I-539 filed with an I-129 is desired, the employer and/or the foreign national must pay a total of $2000: $1000 to premium process the I-129 and $1000 to premium process the Form I-539.

We will update you as soon as we receive further information about the expansion of this program.

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