USCIS to Offer I-140 Premium Processing for Certain H1B Workers

USCIS took a baby step this week to expand premium processing services to include Form I-140, Petition for Alien Worker, for a limited group of H-1B workers. However, it is an important step nonetheless. Expedited processing of I-140 may become critical in some cases, including H-1B extension beyond the 6-year limit, or changing jobs before green card approval. Amid deep recession, either one is priceless.

Who are eligible?
H-1B workers, at the time of filing Form I-907, are eligible for premium processing of their I-140 petitions only if they:

• Have reached the 6th year statutory limitation of their H-1B stay, or will reach the end of their 6th year of H-1B stay within 60 days of filing;
• Would only be eligible for a further extension of H-1B nonimmigrant status upon approval of their Form I-140 petition under section 104(c) of AC21 (three-year extension); and
• Are ineligible to extend their H-1B status under section 106(a) of AC21 (one-year extension).

When does the new policy take effect?
March 2, 2009.

What exactly is premium processing anyway?
Premium processing is an expedited service that USCIS offers, for a fee, which will guarantee the processing of certain immigration petitions or applications within 15 calendar days.

• The form to request premium processing is I-907;
• I-907 filing fee is $1000 (this is for premium processing only, and is in addition to all other filing fees);
• The $1000 filing fee must be paid with a separate check or money order;
• Processing a case within 15 calendar days means the USCIS may approve the case, send a Notice of Intent to Deny (NOID), or issue a Request for Evidence (RFE);
• Either the petitioner or beneficiary (employer or employee) can pay the $1000 fee, but only the petitioner or their representative can sign and file Form I-907;
• If USCIS requests further information on a case, the 15-day clock will restart when such information is received;
• If USCIS fails to make a decision within 15 calendar days, they will refund the $1000 fee, but continue to leave the case in the fast-track queue;
• Form I-907 to request premium processing may be filed together with a petition or separately when the petition has been pending, i.e., either concurrent filing or standalone is permitted.

How to request premium processing on a pending case?
To request premium processing of a pending I-140 petition, you must file Form I-907, along with the filing fee and all supporting documents to demonstrate eligibility.

Can an H-1B worker request premium processing on his or her own behalf?
Beneficiaries of I-140 petitions – H1B workers in this case – cannot sign Form I-907; only the petitioners (mostly employers), applicants, attorneys and other accredited representatives are allowed to do that. The only exception is when the beneficiary is a self-petitioner of the I-140 because a job offer is not required.

If an attorney or accredited representative files Form I-907, a Notice of Appearance (Form G-28) must accompany the request, even if the attorney or accredited representative has already filed a Form G-28 in the case.

What is section 104(c) of AC21?
Section 104(c) of AC21 allows an H-1B worker to extend his or her status beyond the 6-year limit, in three-year increments, if he or she has an approved immigrant petition (I-140) but is unable to obtain an immigrant visa number because of the per-country limits (i.e. Priority Date is not current)

What is section 106(a) of AC21?
Section 106(a) of AC21 allows an H-1B worker to extend his or her status beyond the 6-year limit, in one-year increments, when 365 days or more have passed since the filing of labor certification, or an EB immigrant petition (I-140) if LC is not required.

Will USCIS expand premium processing to other petitions?

Possibly. $1000 is a lot of money, and USCIS can always use more money. However, they have been reluctant to expand premium processing too far, as they may not be able to fulfill the 15-day commitment. There have been talks about changing the 15 calendar days to business days, which is still significantly shorter than the normal processing times for most cases, but there is no clear indication whether this will happen, or when.

Personally I’m not a fan of premium processing. If an agency can manage to accumulate a mountain of backlogs, and then offer a faster service for additional fees, it is essentially rewarding people for their inefficiency. Not to blame the slow process solely on USCIS, but where is the motivation to improve efficiency if more backlog means more income?

However, just like taking a toll road or express lane to avoid traffic, premium processing offers much needed relief in certain immigration cases, and sometimes can save a person from falling out of status. Since the backlogs will continue to exist, having premium processing available is certainly a good thing, and will be appreciated by immigrants who can take advantage of it.