Premium Processing Service

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Premium Processing Service refers to an optional premium service offered by the United States Citizenship and Immigration Services to employers filing Form I-129 (Petition for a Nonimmigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). To avail of the service, the employer needs to file Form I-907 and include a fee that (as of 2021) is $1,500 for the H-2B and R classifications and $2,500 for all others.[1][2]

Service offered[edit]

Procedure and time frame[edit]

According to the United States Citizenship and Immigration Services website, USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing.[1] The time begins from the receipt of Form I-907 and the associated fee. Form I-907 may be filed along with Form I-129 or I-140, or electronically as a standalone form for a previously filed Form I-129 or I-140.[1]

What it means to process an application[edit]

When the USCIS says it will process the application within 15 days, this does not mean that a final decision about the application will be reached within that timeframe. Rather, the USCIS promises one of the following four responses:[1]

  1. Approval Notice
  2. Request For Evidence (RFE): The USCIS asks the applicant to submit additional evidence or information.
  3. Notice of Intent to Deny (NOID)
  4. Commencing an investigation for fraud or misrepresentation.

If the USCIS issues a RFE or NOID, the applicant must file a timely response. The USCIS has an additional 15 days to process the application after receiving the applicant's response. Form I-907 need not be filed again, and the premium processing fee need not be paid again.

Classifications for which the Premium Processing Service is available[edit]

At present, the Premium Processing Service is available for all visa classes for which Forms I-129 and I-140 can be used, with the exception of Form I-129 filings that request a change or an initial grant of status for beneficiaries within the Commonwealth of Northern Mariana Islands (CNMI).[1]

Relation with cap-subject visas[edit]

Applying for the Premium Processing Service does not provide any preferential treatment in the lottery for cap-subject visas such as the H-1B visa, H-2B visa, or H-3 visa.[1][2]

Discretionary expedite requests[edit]

USCIS' previous system of allowing discretionary expedite requests is no longer available for any task for which the Premium Processing Service is available, with one exception: non-profits (as designated by the Internal Revenue Service) may still make discretionary expedite requests instead of using the Premium Processing Service.[1] Also, for categories for which Premium Processing has been temporarily suspended, discretionary expedite requests may be made and would be subject to the usual Expedite Criteria.[3][4]

History[edit]

Background (1999-2000)[edit]

The general idea of the Premium Processing Service started taking shape in 1999 when Congress and private industry started putting pressure on the INS to process applications faster. Congress mandated that INS process L-1 petitions within 30 days.[5][6]

On December 21, 2000, President Bill Clinton signed an amendment to the Immigration and Nationality Act that added the subsection:[5]

The Attorney General is authorized to establish and collect a premium fee for employment-based petitions and applications. This fee shall be used to provide certain premium-processing services to business customers, and to make infrastructure improvements in the adjudications and customer service process. For approval of the benefit applied for, the petitioner/applicant must meet the legal criteria for such benefit. This fee shall be set at $1,000, shall be paid in addition to any normal petition/application fee that may be applicable, and shall be deposited as offsetting collections in the Immigration Examinations Fee Account. The Attorney General may adjust this fee according to the Consumer Price Index.

Introduction of Premium Processing for Form I-129 (2001)[edit]

The 2000 legislative amendment did not explicitly define “Premium Processing”; therefore, the INS used its authority under Section 103(a) of the Act to establish the details of this new service, such as the processing timeframe (15 calendar days) and the Standard Operating Procedures. INS published an interim rule in the Federal Register, Volume 66, No. 106, on June 1, 2001, establishing Premium Processing for employment–based petitions and applications.[5][7] Premium Processing Service was activated for the majority of Form I-129 categories on June 1, and for the rest on July 30.[1][8]

Expansion to Form I-140, Form I-539, and Form I-765 (2006)[edit]

On May 23, 2006, USCIS announced that it would roll out the Premium Processing Service for some Form I-140 visa categories (these still support Premium Processing) as well as to some Form I-539 categories (these no longer support Premium Processing) and Form I-765 (this no longer supports Premium Processing).[9]

The rollout continued through 2006. Premium Processing was suspended for Form I-140 on July 2, 2007, and reinstated on June 29, 2009.[1]

Ending of "courtesy" Premium Processing for Form I-539 accompanying Form I-129 (2019)[edit]

In July 2019, USCIS announced that Form I-539 filed along with a principal Form I-129 for a dependent of the Form I-129 beneficiary would no longer be processed in lockstep with the principal Form I-129. In particular, even if the principal Form I-129 had Premium Processing, the Form I-539 may not be processed within the Premium Processing timeframe. This was due to the new biometrics requirements for Form I-539 that made it difficult for USCIS to guarantee turnaround within the 15 calendar days that Premium Processing requires.[10]

Emergency Stopgap USCIS Stabilization Act (2020)[edit]

The Emergency Stopgap USCIS Stabilization Act, passed on October 1, 2020 as part of the Continuing Appropriations Act, 2021 and Other Extensions Act allowed for a fee increase to $2,500 for all categories except the H-2B and R categories, and to $1,500 for those two categories. It also directed the USCIS to provide Premium Processing Service for all petitions and applications using Form I-129, Form I-140, Form I-539, and Form I-765.[11]

On March 9, 2021, a letter hosted on the American Immigration Council's website, and signed by several advocacy and legal groups, urged USCIS to implement the provisions of the Emergency Stopgap USCIS Stabilization Act to expand Premium Processing Service to more categories.[12]

Fee changes[edit]

Here is the history of fee changes:

Fee (in USD) Date of announcement Date the new fee would take effect Notes
1,000 2001 2001 initial fee set in the legislation that directed INS to create the Premium Processing Service
1,225 November 2010 2011 fee increase based on price increases over the last decade
1,410 August 31, 2018 October 1, 2018 fee increase based on price increases over the last decade, using the Consumer Price Index[13]
1,440 October 30, 2019 December 2, 2019 fee increase based on price increases over the last year, using the Consumer Price Index[14]
1,500 (for H-2B and R), 2,500 (for all others) October 16, 2020 October 19, 2020 fee increased based on the "Emergency Stopgap USCIS Stabilization Act, which requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes."[15]

Suspensions of Premium Processing Service[edit]

Suspension of Premium Processing Service in March 2020 for all petitions, attributed to the COVID-19 pandemic[edit]

Due to the COVID-19 pandemic in the United States, the USCIS announced on March 20, 2020 that Premium Processing Service would be suspended for all petitions (for both Form I-129 and I-140) effective immediately, and any requests not already accepted would be returned, along with the payment being returned. Already submitted requests for Premium Processing would be refunded if the USCIS failed to take action on the case within the promised 15-day period.[16] This follows a previous announcement of temporary suspension of Premium Processing for cap-subject H-1B petitions for Fiscal Year 2021, with the earliest possible date of resumption of Premium Processing for that category being June 29, 2020.[17]

On May 29, 2020, USCIS announced a phased resumption of Premium Processing through June 2020 as follows:[18]

  • June 1 for all Form I-140 petitions
  • June 8 for H-1B petitions, that were both cap-exempt and already pending adjudication, as well as all non-H-1B Form I-129 petitions that are already pending adjudication
  • June 15 for H-1B petitions that are cap-exempt for specific reasons (including newly filed ones)
  • June 22 for all Form I-129 petitions (the remaining ones include newly filed petitions and cap-subject H-1B petitions)

Suspension of Premium Processing Service for new cap-subject H-1B petitions for Fiscal Year 2019[edit]

On March 20, 2018, USCIS announced that it would suspend, until September 10, 2018, Premium Processing for all petitions subject to the Fiscal Year 2019 cap (in particular, this would not include transfer petitions or extensions). Petitions for Fiscal Year 2019 (earliest start date possible: October 1, 2018) would open on April 2, 2018.[19][20] On August 28, 2018, USCIS announced that it was extending this suspension of the Premium Processing Service to February 19, 2019, and also expanding the scope to all H-1B petitions filed at the Vermont and California Service Centers, with some noted exceptions. Petitioners could still make discretionary expedite requests.[21][22]

Suspension of Premium Processing Service for H-1B petitions starting April 3, 2017[edit]

On Friday, March 3, 2017, USCIS announced that starting Monday, April 3, 2017, Premium Processing would be suspended for all H-1B petitions, and the suspension could last up to six months. April 3, 2017 is the earliest date that H-1B petitions for Fiscal Year 2018 can be submitted, so none of these petitions would be eligible for Premium Processing.[3][23] These petitions would be eligible for discretionary expedite requests, subject to the usual restrictions placed for such requests.[3][4] Commentators discussed the suspension in the context of efforts by the administration of newly elected President Donald Trump to change the regulations and procedures surrounding immigration, as well as legislation under discussion that would alter the working of the H-1B program.[24][25][26] On September 18, 2017, USCIS lifted the suspension of Premium Processing.[27]

Pre-announced delays for processing cap-subject petitions[edit]

Starting March 2013, USCIS has generally announced a delayed start date from which to start the 15-day counter for premium processing for cap-subject petitions for the H-1B visa. This has been done in anticipation of a huge load of applications and the need to prioritize data collection about all applications. In other words, applicants who requested the Premium Processing Service should expect a response within 15 days of the delayed start date rather than within 15 days of the USCIS receiving the application.

Note that fiscal years 2018 and 2019 are excluded from the table; see the sections above explaining the suspension of premium processing for these fiscal years.

Year for which the applications are made Date of announcement Date of delayed start for the 15-day countdown Date that the USCIS opened applications Last date that the USCIS accepted cap-subject petitions
Fiscal Year 2014 (begins October 1, 2013) March 15, 2013[28][29] April 15, 2013[28][29] April 1, 2013[28] April 5, 2013[30]
Fiscal Year 2015 (begins October 1, 2014) March 25, 2014[31] April 28, 2014[31] April 1, 2014[32] April 7, 2014[33]
Fiscal Year 2016 (begins October 1, 2015) March 12, 2015[34] May 11, 2015 (initially announced)[34]
Later revised to April 27, 2015[35]
April 1, 2015[34] April 7, 2015[36]
Fiscal Year 2017 (begins October 1, 2016) March 16, 2016[37] May 16, 2016 (initially announced)[37]
Later revised to May 12, 2016[38]
April 1, 2016[37] April 7, 2016[39]
Fiscal Year 2020 (begins October 1, 2019) March 19, 2019[40] May 20, 2019 for cap-subject change of status petitions;[41] June 10, 2019 for other cap-subject petitions (precise date announced June 7, 2019)[42] April 1, 2019[40] April 5, 2019[43]

Other suspensions of the Premium Processing Service[edit]

In addition to the annual suspension of the Premium Processing Service for cap-subject petitions as described above, USCIS has also temporarily suspended Premium Processing Service for other types of applications in order to preserve resources for other kinds of increased caseloads. For instance, in anticipation of increased caseloads due to the Employment Authorization for Certain H-4 Spouses final rule, USCIS suspended Premium Processing Service for H-1B extension of stay petitions in cap-subject categories for the period from May 26 to July 27, 2015. Those who had already applied for the Premium Processing Service before May 26 would still receive it.[44]

In other cases, USCIS has suspended Premium Processing of petitions in categories where the rules have been in flux. Most recently, the USCIS suspended processing of all H-2B petitions starting March 5, 2015, following a ruling by the United States District Court for the Northern District of Florida in Perez v. Perez.[45] On March 18, the district court granted a motion by the United States Department of Labor to resume issuance of temporary labor certifications for the H-2B program,[46] so the USCIS resumed processing H-2B petitions, but kept Premium Processing suspended.[47] On April 17, 2015, USCIS announced that it was resuming Premium Processing for H-2B petitions starting April 20, 2015.[1][48]

Reception[edit]

Reasons companies use the Premium Processing Service[edit]

Since applying for Premium Processing does not provide any preferential treatment to applicants,[1][2] commentators have claimed that the main reason companies are willing to pay these fees is because the faster turnarounds allow them and their prospective employees to plan next steps more effectively. This is particularly important in cases of requests for evidence or notices of intent to deny, because of the further iterations needed in order to get approved.

Criticism of the Premium Processing Service[edit]

In June 2001, shortly after the introduction of the Premium Processing Service by the Immigration and Naturalization Service (the predecessor to USCIS), Gary Endelman wrote an article in Immigration Daily critical of the Premium Processing Service. He argued that the very fact that people were willing to pay the fee for 15-day processing times highlighted severe inefficiencies and unfunded mandates on the INS, which should not take much longer to process applications in any case. He suggested that rather than allowing the INS to treat these fees as cash cows, the United States legislature should identify clearer, more limited mandates for the agency along with a plan to fund them.[6]

Proposals to expand the Premium Processing Service to other visa categories[edit]

On his personal blog The Asylumist, lawyer Jason Dzubow has mooted the idea of extending premium processing to asylum applications, so that the influx of funds could help the USCIS spend more resources to clear a huge backlog of cases.[49]

There have also been repeated requests to the USCIS to enable premium processing for Form I-526 applications that are a first step to obtaining an EB-5 visa (investor visa).[50] The USCIS itself came up with proposals in August 2011 that would allow Premium Processing Service requests for EB-5 investor applications (made on Form I-526) for projects that were fully developed and ready to go.[51] However, as of April 2015, the Premium Processing Service is still restricted only to Form I-129 and Form I-140 petitions.[1][2][50][52]

After the Emergency Stopgap USCIS Stabilization Act of October 2020 directed USCIS to offer the Premium Processing Service for Form I-539 and Form I-765 in addition to Forms I-129 and I-140, the American Immigration Council published a letter on March 9, 2021, with many signatories, urging USCIS to expand the use of Premium Processing Service per the legislation.[12]

See also[edit]

References[edit]

  1. ^ a b c d e f g h i j k l "How Do I Use the Premium Processing Service?". United States Citizenship and Immigration Services. Retrieved April 4, 2015.
  2. ^ a b c d "I-907, Request for Premium Processing Service". United States Citizenship and Immigration Services. Retrieved April 4, 2015.
  3. ^ a b c "USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions". United States Citizenship and Immigration Services. March 3, 2017. Retrieved March 4, 2017.
  4. ^ a b "Expedite Criteria". United States Citizenship and Immigration Services. Retrieved March 4, 2017.
  5. ^ a b c "Audit Report: Immigration and Naturalization Service's Premium Processing Program" (PDF). United States Department of Justice Office of the Inspector General Audit Division. February 1, 2003. Retrieved December 19, 2021.
  6. ^ a b Endelman, Gary (June 12, 2001). "Be Careful of What You Wish For: The Hidden Meaning of Premium Processing Fees". Immigration Daily. Retrieved April 5, 2015.
  7. ^ "Establishing Premium Processing Service for Employment-Based Petitions and Applications". Federal Register. June 1, 2001. Retrieved December 19, 2021.
  8. ^ "Fact Sheet: Premium Processing Service" (PDF). United States Citizenship and Immigration Services. Retrieved April 12, 2016.
  9. ^ "Notice of Designation of Certain Employment-Based Petitions and Applications as Eligible for Premium Processing Service". Federal Register. May 23, 2006. Retrieved December 19, 2021.
  10. ^ "I-539 Applications are Treated as Stand-Alone Applications and are No Longer Eligible for 'Courtesy' Premium Processing with I-129". The National Law Review. July 16, 2019. Retrieved December 19, 2021.
  11. ^ "H.R.8089 - Emergency Stopgap USCIS Stabilization Act 116th Congress (2019-2020)". Retrieved December 19, 2021.
  12. ^ a b "Coalition Letter Urging USCIS to Implement Emergency Stopgap USCIS Stabilization Act". American Immigration Council. March 9, 2021. Retrieved December 19, 2021.
  13. ^ "USCIS Adjusting Premium Processing Fee". United States Citizenship and Immigration Services. August 31, 2018. Retrieved October 1, 2018.
  14. ^ "USCIS Adjusting Premium Processing Fee". United States Citizenship and Immigration Services. October 30, 2019. Retrieved January 25, 2020.
  15. ^ "Premium Processing Fee Increase Effective Oct. 19, 2020". United States Citizenship and Immigration Services. October 16, 2020. Retrieved December 9, 2021.
  16. ^ "USCIS Announces Temporary Suspension of Premium Processing for All I-129 and I-140 Petitions Due to the Coronavirus Pandemic". United States Citizenship and Immigration Services. March 20, 2020. Retrieved March 28, 2020.
  17. ^ "USCIS Announces Temporary Suspension of Premium Processing for FY2021 Cap-Subject Petitions". United States Citizenship and Immigration Services. March 16, 2020. Retrieved March 28, 2020.
  18. ^ "USCIS Resumes Premium Processing for Certain Petitions". United States Citizenship and Immigration Services. May 29, 2020. Retrieved December 19, 2021.
  19. ^ "USCIS Will Temporarily Suspend Premium Processing for Fiscal Year 2019 H-1B Cap Petitions". United States Citizenship and Immigration Services.
  20. ^ "Trump administration targets H-1B visas—again". Quartz. March 21, 2018. Retrieved April 25, 2018.
  21. ^ "USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays". United States Citizenship and Immigration Services. August 28, 2018. Retrieved September 2, 2018.
  22. ^ Chantal Da Silva (August 29, 2017). "H-1B VISA PREMIUM PROCESSING FAST-TRACK PROGRAM ON HOLD UNTIL 2019". Newsweek. Retrieved September 2, 2018.
  23. ^ "USCIS to suspend Premium Processing Service for H-1B visas from April 3". Indian Express. March 3, 2017. Retrieved March 4, 2017.
  24. ^ Statt, Nick (March 3, 2017). "US to suspend fast processing of H-1B visas for high-skilled workers". The Verge. Retrieved March 4, 2017.
  25. ^ Karimi, Faith (March 4, 2017). "US suspends expedited processing of H-1B visas". CNN. Retrieved March 4, 2017.
  26. ^ Lawler, Richard (March 3, 2017). "US suspends 'premium processing' for H-1B visas. Heavily used by tech companies like Microsoft and Facebook, it let applicants receive an answer faster for a fee". Engadget. Retrieved March 4, 2017.
  27. ^ "USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas". United States Citizenship and Immigration Services. September 18, 2017. Retrieved April 25, 2018.
  28. ^ a b c "USCIS to Accept H-1B Petitions for Fiscal Year 2014 on April 1, 2013". United States Citizenship and Immigration Services. March 15, 2013. Retrieved April 20, 2015.
  29. ^ a b "USCIS to Delay Premium Processing for H-1B Cap-Subject Petitions Until April 15, 2013". American Immigration Lawyers Association. Retrieved April 5, 2015.
  30. ^ "USCIS Reaches FY 2014 H-1B Cap". April 8, 2013. Retrieved April 20, 2015.
  31. ^ a b "USCIS to Begin Premium Processing of H-1B Cap-Subject Petitions by April 28, 2014". United States Citizenship and Immigration Services. March 25, 2014. Retrieved April 20, 2015.
  32. ^ "USCIS to Accept H-1B Petitions for Fiscal Year 2015 Beginning April 1, 2014". United States Citizenship and Immigration Services. March 25, 2014. Retrieved April 20, 2015.
  33. ^ "USCIS Reaches FY 2015 H-1B Cap". United States Citizenship and Immigration Services. April 7, 2014. Retrieved April 20, 2015.
  34. ^ a b c "USCIS Will Accept H-1B Petitions for Fiscal Year 2016 Beginning April 1, 2015". United States Citizenship and Immigration Services. March 12, 2015. Retrieved April 20, 2015.
  35. ^ "H-1B Cap Premium Processing to Begin April 27". April 14, 2015. Retrieved June 3, 2015.
  36. ^ "USCIS Reaches FY 2016 H-1B Cap". United States Citizenship and Immigration Services. April 7, 2015. Retrieved April 20, 2015.
  37. ^ a b c "USCIS Will Accept H-1B Petitions for Fiscal Year 2017 Beginning April 1, 2016". United States Citizenship and Immigration Services. March 16, 2016. Retrieved March 26, 2016.
  38. ^ "Fiscal Year 2017 H-1B Cap Premium Processing to Begin May 12". United States Citizenship and Immigration Services. April 25, 2016. Retrieved March 4, 2017.
  39. ^ "USCIS Reaches FY 2017 H-1B Cap". United States Citizenship and Immigration Services. April 7, 2016. Retrieved March 4, 2017.
  40. ^ a b "USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes". United States Citizenship and Immigration Services. March 19, 2019. Retrieved January 25, 2020.
  41. ^ "Premium Processing Begins for Certain Cap-Subject H-1B Petitions on May 20". United States Citizenship and Immigration Services. March 29, 2019. Retrieved January 25, 2020.
  42. ^ "Premium Processing Begins for Remaining H-1B Cap-Subject Petitions on June 10". United States Citizenship and Immigration Services. June 7, 2019. Retrieved January 25, 2020.
  43. ^ "USCIS Reaches FY 2020 H-1B Regular Cap". United States Citizenship and Immigration Services. April 5, 2019. Retrieved January 25, 2020.
  44. ^ "USCIS Temporarily Suspends Premium Processing for Extension of Stay H-1B Petitions". United States Citizenship and Immigration Services. May 26, 2015. Retrieved June 3, 2015.
  45. ^ "USCIS Temporarily Suspends Adjudication of H-2B Petitions Following Court Order". United States Citizenship and Immigration Services. March 9, 2015. Retrieved March 4, 2017.
  46. ^ "District Court Grants DOL Motion Concerning H-2B Program". March 19, 2015. Retrieved March 4, 2017.
  47. ^ "USCIS Resumes H-2B Adjudications; Premium Processing Remains Suspended". United States Citizenship and Immigration Services. March 19, 2015. Retrieved March 4, 2017.
  48. ^ "District Court Grants DOL an Extension for H-2B Program". United States Citizenship and Immigration Services. April 17, 2015. Retrieved March 4, 2017.
  49. ^ Dzubow, Jason (June 26, 2014). "Premium Processing for Asylum Seekers". The Asylumist. Retrieved April 5, 2015.
  50. ^ a b Kalmykov, Kate (August 28, 2012). "Expediting an EB-5 Application". Greenberg Traurig LLC. Retrieved April 5, 2015.
  51. ^ "Secretary Napolitano Announces Initiatives to Promote Startup Enterprises and Spur Job Creation". United States Department of Homeland Security. August 2, 2011. Retrieved April 5, 2015.
  52. ^ "Is there a premium processing alternative available through the USCIS for EB5 regional center applications?". Retrieved April 5, 2015.