KLF Client Alert

On March 30, 2022, U.S. Citizenship and Immigration Services (USCIS) published a final rule entitled, Implementation of the Emergency Stopgap USCIS Stabilization Act.  In this final rule, USCIS codifies multiple changes to the premium processing benefit and clarifies when USCIS is to implement premium processing updates.

Implementation Thus Far

On May 24, 2022, USCIS announced that beginning June 1, 2022, it will begin accepting Form I-907 Premium Processing requests for Form I-140, Immigrant Petition for Alien Worker, on behalf of E13 Multinational Executive and Manager Petitions received on or before January 1, 2021 (meaning that they have already been pending for at least 17 months).  Beginning July 1, 2022, the USCIS will accept such requests for E13 petitions that were received on or before March 1, 2021 (meaning that they have already been pending for at least 16 months).

USCIS further announced that beginning July 1, 2022, it will accept Form I-907 requests for Form I-140 on behalf of E21 National Interest Waiver (NIW) Petitions received on or before June 1, 2021 (meaning that they have already been pending for at least 13 months),

For E13 and E21 NIW petitions that meet the above criteria, petitioners can request premium processing for a fee of $2,500 and USCIS will guarantee a 45-day processing time from the date that they receive the request.

USCIS has indicated that it will later expand premium processing to new initial filings for the aforementioned categories.

Current Premium Processing Options

The former Immigration and Nationality Service first introduced Premium Processing in 2001 allowing certain filers to request a 15-day processing of their application if they pay a premium processing fee. This nonwaivable fee has been adjusted over the years from $1,000 to $1,225 and, prior to the Emergency Stopgap USCIS Stabilization Act, DHS last adjusted the fee to $1,440 in 2019. This final regulation codifies the fee increases that went into effect on August 1, 2020, and lists the additional visa categories that will become eligible for premium processing. Along with the new additions mentioned above, Premium Processing is currently available for the following categories.  The cost is currently $2,500 for all categories below except for H-2B and R-1 for which the cost is $1,500.  The timeframe for all categories is currently 15 calendar days.

• Form I-140, Immigrant Petition for Alien Worker    
  • EB-1 Alien of Extraordinary ability (EB-1A),
  • EB-1 Outstanding professors and researchers (EB-1B),
  • EB-2 Members of profession with advanced degrees or exceptional ability not seeking NIW,
  • EB-3 Skilled Workers,
  • EB-3 Professionals,
  • EB-3 Workers other than skilled workers and professionals   
• Form I-129, Petition for a Nonimmigrant Worker    
  • E-1, E-2, E-3,
  • H-1B,
  • H-2B,
  • H-3,
  • L-1A, L-1B, LZ,
  • O-1, O-2,
  • P-1, P-1S, P-2, P-2S, P-3,
  • Q-1,
  • TN-1, TN-2    
  • R-1

Proposed Additions to Premium Processing

Under the final rule, in addition to the changes mentioned above that came into effect on June 1, 2022, a 30-day premium processing timeframe will also become available to certain Forms I-539 and the Form I-765.  While this final rule indicates that USCIS intends on expanding premium processing for these form types, please note that DHS anticipates a phased implementation approach. 

With respect to the Form I-539, USCIS anticipates accepting premium processing requests from F–1, F–2, J–1, J–2, M–1 and M–2 applicants in FY 2022 and from E–1, E–2, E–3, L–2, H–4, O–3, P–4 and R–2 applicants in FY 2025.

With respect to Form I-765, DHS has indicated it will prioritize premium processing for students applying for Optional Practical Training (OPT) and Exchange Visitors beginning in FY 2022, while others who require an Employment Authorization Document may have to wait until FY 2025 so that USCIS has sufficient time to gather revenue to cover potential costs without adversely affecting the processing time for other benefits.

Key Factors Affecting the Expansion of Premium Processing

This final rule gives hope for a respite from the lengthy processing delays to which we have become accustomed over the past several years. However, we should be mindful that the rule mentions certain prerequisites that must be met to ensure smooth implementation of premium processing, such as:

1. Electronic I-907s required to ensure no adverse effect on current benefits
   • USCIS indicates premium processing will not be made available if it adversely affects the processing timeline for immigration benefits not designated for premium processing. As such, USCIS is prioritizing, and is in the process of expanding, electronic filing for all applications and benefit requests, including specifically the Form I-907, Request for Premium Processing. It expressly states that making the Form I-907 electronic will be a prerequisite to expanding the premium processing eligibility to newly designated immigration benefit requests. As of now, USCIS has not yet introduced an electronic filing option for Form I-907.
2. Final rule allows USCIS to retain discretion as to implementation dates for premium processing
   • While the final rule became effective on May 31, 2022, it is important to note that the designation of a benefit request for premium processing (as well as establishing the corresponding fee and processing timeframes), does not in itself permit a request for premium processing to be filed. Instead, USCIS will communicate (1) which immigrant benefit requests are eligible for premium processing, (2) the date the eligibility becomes available and the date it ends, and (3) any conditions that may apply. Thus, even after the final rule became effective, USCIS still needs to announce when we will be able to actually file these I-907 requests on our clients’ behalf. 
3. USCIS retains discretion to set conditions for premium processing eligibility
   • As discussed in the final rule, USCIS may impose any other conditions it deems appropriate for any new request for premium processing.  USCIS still retains broad discretion to determine if a form will qualify for premium processing and the specific dates that the phasing-in of the premium processing expansion will take place.  The agency also retained the authority to suspend premium processing in the future if circumstances prevent the completion of processing of a significant number of requests within the applicable processing timeframe.  

Conclusion

With the premium processing expansion and other efforts to return to more efficient processing timeframes, USCIS is taking significant steps to address its chronic processing delays.  It is worth noting that USCIS made this decision based on data from prior years, which may offer some insight as to why certain classifications were included and others were not.  It is also helpful that USCIS has acknowledged it is mindful that this expansion could impact the processing of other pending applications and that its aim is to implement expansions only if it is confident that other pending cases will not be disadvantaged.  While further details are still required and a broader expansion of premium processing is still many months away, the final rule is a long-awaited and positive step towards a more efficient adjudication process for applicants in all benefit categories.

Thank you to the American Immigration Lawyers Association for assistance with this alert summary.

Please contact us at info@klugfirm.com or +1 (212) 495-9245 if your require US business immigration law assistance.

You can access our previous Client Alerts here.