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Expansion of Premium Processing Services by USCIS

On March 30, 2022, the United States Citizenship and Immigration Services (USCIS) published a final rule titled Implementation of the Interim Emergency USCIS Stabilization Act. In this final rule, USCIS codifies multiple changes to the premium processing benefit and clarifies when USCIS will implement premium processing updates. USCIS has recently indicated informally that it anticipates the initial implementation of “expanded premium processing” to begin around June 1, 2022 for certain petitions pending approval , >and has indicated that it will announce in the future when it will begin accepting applications for premium processing for initial submissions. Premium processing options currently in effect as of April 26, 2022

  • Form I-140 (EB-1 Alien of Extraordinary Ability (EB-1A), EB-1 Outstanding Professors and Researchers (EB-1B), EB-2, Members of the Profession with Advanced Degrees or Exceptional Ability Not Seeking NIW, EB-3 Skilled Workers, EB-3 Professionals, EB-3 Non-Worker Workers, and Skilled Professionals). Fee: $2,500. Deadline: 15 days
  • Form I-129 (E-1, E-2, E-3, H-1B, 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). Fee: $2,500. Deadline: 15 days
  • Form I-129 (R-1 and H-2B). Fee: $1,500. Deadline: 15 days

Proposed additions to premium processing Under the final rule, a 45-day processing window will be available to those applying for EB-1 immigrant classification as a multinational executive or manager (hereinafter, " EB-1C"), as well as those seeking EB-2 immigrant classification as a member of a profession with advanced degrees or exceptional ability seeking a National Interest Waiver (hereinafter, "EB-2 NIW"). A 30-day premium processing window will also be available for certain Forms I-539

  • Form I-140 (for EB-1 – Multinational Executive or Manager (EB-1C) and EB-2 – Members of Professions with Advanced Degrees or Exceptional Ability Seeking a National Interest Waiver (EB-2 NIW): Fee: $2,500 Term: 45 days
  • Form I-539 (Application for Change of Status to: F-1, F-2, J-1, J-2, M-1, or M-2; and Application for Change of Status to: F-1 , F-2, J-1, J-2, M-1 or M-2, and Change of Status or Extension of Stay in: E-1, E-2, E-3, H-4, L-2 , O-3, P-4 or R-2: ): Fee: $1,750. Term: 30 days
  • Form I-765: Application for Employment Authorization: Fee: $1,500. Term: 30 days

While this final rule indicates that USCIS intends to expand premium processing for the types of forms listed above, DHS anticipates a phased implementation approach. DHS has indicated that it expects to expand premium processing to the additional Form I-140 visa classifications listed above in fiscal year 2022. With respect to Form I-539, USCIS anticipates accepting premium processing requests from F-1 applicants, FY 2022 FY 2, J-1, J-2, M-1, and M-2 and E-1, E-2, E-3, L-2, H-4, O-3 applicants , P-4, and R-2 in FY 2025. Therefore, DHS has indicated that it will prioritize premium processing for students applying for Optional Practical Training (OPT) and exchange visitors beginning in FY 2022, while that others who require an Employment Authorization Document may have to wait until tax year 2025 for USCIS to have enough time to raise revenue to cover potential costs without negatively affecting processing time for other benefits. Clarification on RFE and NOID Stopping the time frame and resetting the clock The final rule clarifies that the issuance of a Request for Additional Evidence (RFE) or a Notice of Intent to Deny (NOID) will stop the time frame processing. Once the requested evidence is received, the period will start again. USICS will refund the premium processing fee if the petition is not adjudicated within the applicable timeframe, but will continue to process the case. If USCIS opens a fraud or misrepresentation investigation in a case, it will not refund the premium processing fee and will not adjudicate the petition within the premium processing time frame. Key Factors Affecting Premium Processing Expansion While the final rule will take effect on May 31, 2022, it is important to note that the designation of an application as available to obtain the benefit of premium processing (as well as the establishment of the corresponding processing fee and terms), does not grant the right to require that a request be processed under premium processing. Instead, USCIS will communicate (1) which immigrant benefit applications are eligible for premium processing, (2) the date eligibility will become available and the date it will end, and (3) any conditions that may apply. Therefore, even after the final rule goes into effect, USCIS will still have to announce when professionals will be able to file these applications on behalf of their clients. Additionally, USCIS retains the discretion to set conditions for premium processing eligibility. Finally, USCIS has indicated that it will begin the expansion of premium processing described above on or about June 1, 2022, for pending petitions and then expand to new initial filings.