United States: Need A Decision Faster? DHS Expands Premium Processing For Certain Employment-Based Petitions

The Department of Homeland Security (DHS) is expanding the availability of premium processing for certain pending, employment-based (EB) immigrant petitions, according to its recent announcement. The changes specifically affect:

• EB-1 multinational executives and managers; and
• EB-2 professionals with advanced degrees or exceptional ability seeking a national interest waiver (NIW).

This is the second phase of the previously announced plan to expand premium processing. The agency aims to increase efficiency and reduce burdens to the immigration system.

How is the second phase different from the first?

Premium processing will be available for the same Form I-140 (Immigrant Petition for Alien Workers) categories. This phase, however, applies to petitions filed at a later time, specifically, to submissions filed on or before the dates set out below.

What is the fee?

The premium processing fee for these categories is $2,500.

What is the timeframe for processing?

Upon receiving the properly filed request for premium processing, the government will process the petition within 45 calendar days. However, if the government issues a Request for Evidence or Notice of Intent to Deny, the premium processing timeframe will stop - and reset once the requested evidence is received to a new 45-day period. Employers should submit all of the supporting evidence in the initial filing to avoid delays.

Why is this important?

Due to the pandemic and other issues, U.S. Citizenship and Immigration Services (USCIS), a component of DHS, has a significant number of pending cases and has experienced increased processing times. According to the agency, the current processing time for 80% of the petitions is:

• approximately 13-16 months for EB-1 petitions for multinational managers and executives; and
• approximately 15-20 months for EB-2 NIW petitions.

What does the expansion mean for employers?

Employers that filed a Form I-140 petition in one of these categories - during the designated period - will be able to receive a decision more quickly by paying a higher fee. This change benefits organizations that previously would have had to wait a longer period of time to receive a decision for an employee.

The overall employment-based annual limit for immigrant visas in fiscal year 2022 is approximately twice as high as usual - a record high, primarily due to constraints abroad and in the United States during the COVID-19 pandemic. This means that approximately twice as many people may be approved for legal permanent residency (green cards) this fiscal year, which ends September 30, 2022. To this end, USCIS is prioritizing the adjudication of certain employment categories and encouraging the beneficiaries to consider applying for legal permanent residence. We therefore recommend that employers review the visa bulletin and consider upgrading any pending EB-1 and EB-2 petitions that are eligible for premium processing to secure prompt review of the petitions.

Can an employer request premium processing for a new petition on behalf of an EB-1 multinational executive/manager or EB-2 NIW?

No. The premium processing service is not yet available for new filings.

Can an employer still make a request for discretionary expedited service when special circumstances arise?

There are several differences between premium processing and expedited requests for special circumstances.

• Premium Processing: For certain designated employment categories, USCIS will adjudicate a benefit request within a prescribed period of time for an additional fee. The petitioner does not need to provide a reason for the request.

• Expedited Requests: The agency may within its discretion expedite the adjudication of a benefit request (essentially moving the case to the front of the line and adjudicating it before others that were filed earlier) - without requiring an additional fee. The agency will consider an expedite request if it meets certain criteria such as the company or person will experience severe financial loss, for emergencies and humanitarian reasons, when it is in the U.S. government's interests, clear USCIS error, or for certain non-profit organizations when the request is in the cultural or social interests of the United States.

In general, discretionary expedited requests will no longer be available for petitions designated as eligible for premium processing.

What if I provide all of the required evidence in the initial filing but the government does not complete the adjudication within 45 days?

USICS will refund the premium processing fee and the agency will continue processing the case if it does not adjudicate the petition within the applicable timeframe. If DHS investigates the case for misrepresentation or fraud, it will not refund the premium processing fee and is not obligated to adjudicate the petition within the requisite timeframe.

What happens if the government cannot timely complete a significant volume of premium processing requests?

DHS may suspend the availability of premium processing for certain immigration benefit requests if circumstances prevent the agency from being able to complete a significant number of such requests within the applicable processing timeframe.

Will DHS continue to expand premium processing?

The announcement reiterated that the agency is working towards a further expansion of additional premium processing services, including, Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization sometime this year.

Will there be an increase in the processing times for petitions that are not designated for premium processing?

When DHS implements the availability of premium processing or expands premium processing to new immigration benefit request types, it must ensure that such implementation or expansion does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated.

Before DHS can implement the expansion of premium processing, the agency must raise sufficient funds to ensure it has the staffing and information technology resources in place to expand premium processing availability to avoid increasing non-premium processing related processing times.

How do employers request premium processing?

Petitioners (or their attorney or representative) should submit the Form I-907 (Request for Premium Processing) to the service center where the petition is currently pending, along with a copy of the Form I-797 (Receipt Notice) for the Form I-140. The Form I-907 should be properly completed and signed, with the correct fee. The Form I-907 cannot currently be filed electronically, but the government plans to make electronic filing available in the future.

Can the beneficiary of the petition request premium processing?

No, unless the beneficiary has self-petitioned (the petitioner and beneficiary are the same).

Who can pay the fee?

The petitioner, beneficiary, attorney, or other representative may pay the premium processing fee.

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