USCIS Premium Processing Service:

When To Use It?

Introduction

The Premium Processing Service allows petitioners to expedite USCIS’s petition decision process. On June 1, 2001, the legacy U.S. Immigration and Naturalization Service (INS) implemented the Premium Processing Service promising to speed up the agency’s applications decision process on select types of employment-based petitions.

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What Is USCIS’s “Premium Processing” Service?

1. USCIS Must Provide A Response Within 15 Calendar Days

Under the USCIS Premium Processing Service, paying an additional fee (currently $1,225) will guarantee a USCIS decision on applicable employment-based petitions within 15 calendar days of the receipt of the petition by USCIS or within 15 calendar days of the receipt of the premium processing request for a petition which is already pending.

If the petition is not adjudicated within the 15 days, USCIS will refund the Premium Processing fee.


2. USCIS’s “Response” May Be An Approval, Denial or Request For Evidence

The processing time of the 15-day period begins when the Form I-907 is received by USCIS (at the appropriate address) and will end upon the mailing of the USCIS notice. The notice may be a notice of approval, denial, request for evidence, notice of intent to deny or notice to open an investigation for fraud or misrepresentation.

NOTE: If the notice requires the submission of additional evidence or a response to an intent to deny, a new 15-day period will begin upon the receipt of a complete response from the petitioner by USCIS.


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3. Which Petitions Are Eligible For Premium Processing?

At this time, only certain employment-based nonimmigrant (Form I-129) and immigrant petitions (Form I-140) are eligible for Premium Processing.


4. Premium Processing For Nonimmigrant Petitions

Certain nonimmigrant petitions for foreign national workers filed with Form I-129 are eligible for Premium Processing. As of today, the following nonimmigrant classifications are eligible for Premium Processing:

E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN nonimmigrant categories can request Premium Processing Service.

Note 1: R-1 petitioners can only seek Premium Processing Service if a successful on-site inspection by USCIS at the location where the beneficiary will be employed has taken place. The site visit must have taken place within the last 2-3 years. An R-1 petition may be upgraded to Premium Processing if a site visit has taken place and the officer has submitted the required report to USCIS.

Note 2: Premium Processing Service is not available for any Form I-129 that requests a change or initial grant of status for beneficiaries within the Commonwealth of Northern Mariana Islands (CNMI).


5. Premium Processing For Immigrant Petitions

Immigrant petitions for foreign national workers filed with Form I-140 are eligible for Premium Processing. As of today, the following employment-based immigrant visa categories are eligible for Premium Procesing:

EB-1A and EB-1B

Premium Processing Service is available for I-140 petitions filed to classify a beneficiary as an Alien of Extraordinary Ability (EB-1A) or Outstanding Professor and Researcher (EB-1B).

Premium Processing Service is not currently available for I-140 petitions filed on behalf of Multinational Executives and Managers (EB-1C).

EB-2

Premium Processing Service is available for I-140 petitions filed on behalf of members of professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver in the EB-2 category.

Premium Processing Service is currently not available for I-140 petitions filed on behalf of members of professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

EB-3

Premium Processing Service is available for all I-140 petitions filed on behalf of Professionals, Skilled Workers and Other Workers in the EB-3 category.

DID YOU KNOW?
For I-140, Immigrant Petitions, Premium Processing is not available if the I-140 is not being filed with the original Labor Certification. For I-140’s that should have a Labor Certification attached, the original may be missing if the I-140 is a request for Amendment or is a Re-filing after Denial. The original may also be missing if the employer misplaced the Labor Certification or the original Labor Certificate was never received in the mail.

Once USCIS has requested and received a Duplicate Original Labor Certificate from USCIS, Premium Processing can be requested.

6. What Is The Fee for Premium Processing Service?

The fee for USCIS Premium Processing Service is currently $1,225. The Premium Processing fee is in addition to all other USCIS filing fees for the application or petition. Fee waivers are not available for the Premium Processing Fee.

How Does One Apply For Premium Processing?

1. Use Form I-907, Request For Premium Processing Service

An request for premium processing of a petition is made by filing a completed and signed Form I-907, Request for Premium Processing Service and attaching a remittance of $1,225.

Form I-907 may be filed together with the Form I-129 or Form I-140 and the supporting documents, at the USCIS Service Center designated as the appropriate filing location on the primary form instructions.

In the case where an I-129 or I-140 petition has already been filed without a request for Premium Processing, the petition can be “upgraded” to Premium Processing by filing the Form I-907 and the check for the filing fee of $1,225 to the Service Center where the I-129 or I-140 petition is currently pending, together with a copy of the Notice of Action, Form I-797C/Receipt Notice.

NOTE: If the petition has been transferred to another Service Center since the date of filing, it is important to also include the Transfer Notice and submit the Form I-907 to the transferred location.


2. Filing Form I-907 At A Wrong Service Center

USCIS will reject any Form I-907 premium processing service request that is filed at an office without geographic jurisdiction over the underlying petition if the Form I-907 is filed:

  1. concurrently with a Form I-140 petition;
  2. concurrently with a Form I-129 petition; or
  3. as a standalone relating to a pending Form I-129 petition.

In the case of a standalone Form I-907 relating to a Form I-140 petition erroneously filed at the wrong service center, USCIS will not reject the filing, but instead will forward the filing to the correct service center having jurisdiction over the petition or application. For incorrectly filed Forms I-907, the 15-calendar day period will start on the date the file is received at the correct service center as indicated in the Form I-907 filing instructions.


3. The 15-Day Guarantee

If the USCIS Service Center fails to process the petition within 15 calendar days, USCIS must refund the premium processing filing fee and continue to process the petition as part of the Premium Processing Service. In addition to expedited processing, companies who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

When Should You Opt To Use Premium Processing Service

1. When You Need To Get An Answer Quickly

Premium Processing can be very useful in situations where a relatively rapid response is crucial. Common examples include:

  • The employer who is filing an I-129 petition needs to have an employee commence employment as soon as possible and the employee is unable to take advantage of change of employer portability provisions generally available to H-1B and L-1 employees or it’s a change of status petition;
  • The employer is filing an I-129 petition and employee is outside the country and must obtain approval of the petition before applying for the visa and being able to enter the country to commence employment;

The employer is filing an I-140 petition and needs to obtain the approval quickly so that an H-1B petition can be filed for the employee for a 3-year extension under the AC21 provision.


2. To Speed Up Processing After A Delay Caused By A Request For Evidence

USCIS Premium Processing Service is also useful in cases pending in normal processing in which an RFE is issued. Petitioners may opt to convert such a case to Premium Processing in order to get a final decision quickly.

A situation in which this would prove to be useful is in cases where the employer has filed an I-129 petition to extend the employee’s stay and the case has been pending for close to 240 days after the employee’s status has expired. Those in H-1B, L-1, and H-1B1 status are authorized to work for 240 days past the expiration of their I-94 days while an extension of status is pending. Premium Processing is a good option for these individuals so that the ability to work is not interrupted.


3. Are There Situations Where Premium Processing Is Not Recommended?

The Premium Processing Service can be cost prohibitive for many employers and beneficiaries. It is important to remember that the service may not always be necessary.

In the nonimmigrant petition context, for example, H-1B, L-1 and H-1B1 employees are authorized to continue working for 240 days the expiration of their I-94 while the I-129 petition is pending.

Also, H-1B employees are authorized to commence employment with a new employer once the I-129 is filed in most cases. Approval in such cases is not required.

Similarly, for immigrant petitions, an immediate approval may not always be necessary. For those chargeable to China and India, for example, whose priority dates are retrogressed, a quick approval may not be necessary as the beneficiary is unable to file Adjustment of Status or continue to Consular Processing.

Also, it may be advantageous for the I-140 to remain pending for several months if the employee has any children nearing the age of 21 who need to take advantage of the Child Status Protection Act.


Conclusion

USCIS’s Premium Processing Service is a useful service but should be used judiciously. If the Premium Processing examiner issues an RFE, the time sought to be saved may be lost in responding to the RFE. Also, Premium Processing may not be required at all where the filing of petition is properly planned beforehand.

If you are an employer or a nonimmigrant with questions about premium processing, consult a VisaPro attorney.


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