June 27, 2022
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. The following practice advisory will assist practitioners in setting expectations for their clients and update them on the nuances of the final rule that affect a broader expansion of premium processing. It is important to note that USCIS has recently indicated informally that it anticipates the initial implementation of expanded premium processing will be “premium processing upgrades” for certain pending petitions on or about June 1, 2022.
On May 24, 2022, USCIS announced that it will begin accepting Form I-907 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. 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, as well as Form I-140 filed on behalf of E13 Multinational Executive and Manager Petitions received on or before March 1, 2021.
Premium Processing Options as of April 2022
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. The following table shows benefit categories for which premium processing is currently available and the required processing timeframe.
Applications Eligible for Premium processing
Filing Fee for Premium Processing
Timeframe for Premium Processing
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
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
R-1 and H-2B
Proposed Additions to the Premium Processing
Under the final rule, a 45-day premium processing timeframe will become available for those requesting EB-1 immigrant classification as a multinational executive or manager (hereinafter “EB-1C”) as well as those requesting 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 timeframe will also become available to certain Forms I-539 (see the detailed table below) and the Form I-765. The table that follows provides practitioners with a snapshot of the proposed fee and timeframe for each new addition.
Applications Eligible for Premium Processing
Filing Fee for Premium Processing
Timeframe for Premium Processing
EB-1 – Multinational Executive or Manager (EB-1C)
EB-2 – Members of Professions with Advanced Degrees or Exceptional Ability Seeking a National Interest Waiver (EB-2 NIW)
Change of Status Request to: F-1, F-2, J-1, J-2, M-1, or M-2
Change of Status to or Extension of Stay in: E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2
Request for Employment Authorization
While this final rule indicates that USCIS intends on expanding premium processing for the form types listed above, practitioners should note that DHS anticipates a phased implementation approach. DHS has indicated that it hopes to expand premium processing to the additional Form I-140 visa classifications listed above in FY 2022.On May 24, 2022, USCIS announced implementation of premium processing for certain From I-140 EB-1 and EB-2 petitions to become available on June 1, 2022 and July 1, 2022. Additional information on this can be found in Section IV.b of this Practice Pointer. 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. Thus, 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.
Clarification on RFE and NOIDs stopping the timeframe and resetting the clock
The final rule clarifies that issuance of a Request for Further Evidence (RFE) or Notice of Intent to Deny (NOID) will stop the premium processing timeframe. Upon receipt of the requested evidence, the timeframe will start over. USICS will refund the premium processing fee, but will continue processing the case, if it does not adjudicate the petition within the applicable timeframe. If the USCIS opens a fraud or misrepresentation investigation on a case, it will not refund the premium processing fee and will not adjudicate petition within the premium processing time frame.
Key Factors Affecting the Expansion of Premium Processing
This final rule gives practitioners and their clients hope for a respite from the lengthy processing delays to which they have become accustomed over the past several years. However, practitioners should be mindful that the rule mentions certain prerequisites that must be met to ensure smooth implementation of premium processing, such as:
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 the time of the publication of this practice advisory, USCIS has not yet introduced an electronic filing option for Form I-907.
Final rule allows USCIS to retain discretion as to implementation dates for premium processing
While the final rule is set to become 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 becomes effective, USCIS will still need to announce when practitioners will be able to file these requests on their clients’ behalf. On May 24, 2022, USCIS announced that beginning June 1, 2022, it will accept premium processing requests for Form I-140 E13 Multinational Executive and Manager petitions received on or before January 1, 2021, and that beginning July 1, 2022, it will expand premium processing requests for Form I-140 E13 Multinational Executive and Manager petitions to those that were received on or before March 1, 2021. It has also announced that on July 1, 2022, it will accept premium processing requests for NIW Petitions received on or before June 1, 2021. USCIS will publish additional updates on its premium processing website. Practitioners are well advised to set proper expectations with their clients, keeping in mind that following the established procedures for requesting expedited processing may still be needed in the short term.
USCIS retains discretion to set conditions for premium processing eligibility
With the exception of the R-1 visa context, many practitioners ordinarily advise that a “bare-bones” filing will typically require the forms, fees, and basic evidence of eligibility at the time of filing. As discussed in this final rule, USCIS may impose any other conditions it deems appropriate for any new request for premium processing. Practitioners handling nonimmigrant Religious Worker matters are accustomed to one such requirement – a successful onsite inspection as a prerequisite to premium processing eligibility – but for others, this may be a new concept. 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. As of the writing of this practice pointer, USCIS has indicated that it will initiate the premium processing expansion described above on or about June 1. 2022, for pending petitions and that it will later expand it to new initial filings.