USCIS released in Federal Register (Vol. 71, No. 99, May 23, 2006), that it would provide premium services for the following forms: I-140 “Immigration Petition for Alien Worker,” I-539 “Application to Extend/Change Nonimmigrant Status,” and I-765 “Application for Employment Authorization.” On July 24, Dr. Emilio Gonzalez, director of the U.S. Citizenship and Immigration Services (USCIS), announced that USCIS will start premium service for EB3 I-140 sometime in August.

According to the premium processing, for an additional fee of $1000, the USCIS will process the designated form within 15 calendar days of receipt. While a decision will not necessarily be issued in 15 days, a USCIS officer will review the application and determine the appropriate action. In many instances, this action could be an approval. The officer could issue any of the following, however: a request for further evidence (RFE), a denial, a Notice of Intent to Deny (NOID), or a notice of fraud investigation. If the notice requires an applicant to respond with additional evidence and/or legal argument, the USCIS is supposed to make a final decision within 15 days of receipt of the response.

Here we analyze the influences of the premium processing for I-140s:

Once the premium processing is initiated, this service will be available for the following employment-based immigrant visa classifications:
o EB1 Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Executives and Managers

o EB2 Professionals with Advanced Degrees or Exceptional Ability who are NOT seeking a National Interest Waiver

o EB3 Professionals and Skilled Workers
But the I-140 premium processing will NOT be available for National Interest Waiver (NIW) petitions. As NIW petitions are complicated and require significant time for detailed review.

The addition of these new applications eligible for the premium processing will be a valuable tool for many people, especially those with an urgent timeframe to change status. For example, a great benefit of using premium processing for I-140 is to avail oneself of §104(c) of AC21 to obtain 3-year extensions of H1B status.

As we know, generally, H1B status is granted for up to six years. If an H1B worker has had a labor certification (LC) or an I-140 filed 365 days prior to the expiration of the six years, however, the H1B employer may file to extend the H1B status for that employee beyond the 6th year. These H1B extensions are issued in one-year increments.

And the second manner in which to obtain H1B extensions beyond the 6-year limit grants the extensions in three-year increments. In order to be eligible for the three-year extension, the H1B worker must be the beneficiary of an approved I-140 petition and the case must be subject to retrogression (no availability of visa numbers). In this situation, the employer may request an extension of the H1B status beyond the 6th year, in three-year increments. In this situation, I-140 premium processing would potentially provide an advantage to the long-time H1B worker, as well as to the H1B employer. Under the new policy, if a beneficiary has an approved I-140 petition but cannot complete the green card process due to retrogression, he can apply for a 3-year extension of H1B status at the end of the six-year H1B limitation period.

But on July 24, when Dr. Emilio Gonzalez, director of the U.S. Citizenship and Immigration Services (USCIS) answered some questions through an online chat on the White House website, he said that I-140 Premium Processing will be “rolled out in several stages.” According to Dr. Gonzalez, EB3 I-140 Premium Processing may begin as early as August 2006. While this news is welcome for those in the EB3 category, it is disappointing that EB2s and EB1s will not immediately enjoy premium processing. We hope the premium services would be available in the near future for both EB1 and EB2.

In addition, an obvious benefit of this new policy is a shortened green card waiting time because the premium service can reduce processing time significantly.