On September 30, 2020, the President signed a bill that makes several important changes to premium processing, a service available for only certain immigration benefits applications where USCIS can expedite the processing of the application for an additional fee. Currently, premium processing is only available for certain employment-based nonimmigrant and immigrant applications, but the bill will expand the use of premium processing to a larger variety of immigration benefit types, both helping the agency and the applicants who need the benefits very quickly.
The bill, entitled The Continuing Appropriations Act, 2021 and Other Extensions Act, will fund the government through December 11, 2020. One important aspect of this bill is its attempt to address the USCIS budget shortfall, which will hopefully avoid any furloughs or shutdowns before December. This will be done by expanding premium processing eligibility and also raising the premium processing fees for most applications.
Expanded Premium Processing Eligibility:
Premium processing allows eligible applicants to pay an additional fee (currently $1,440) to require USCIS to take action on an application within 15 calendar days. This allows applicants to avoid substantial processing delays, but until now, has only been available to a small set of employment-based immigration benefits. This new bill authorizes premium processing to be provided to the following new classes of applications and petitions, expanding beyond just employment-based immigrants:
-Form I-539 applications filed by dependents in H-4, L-2, E-3D, E-2, O-3, P-4, R-2 status (by spouses and children of individuals in H-1B, L-1, E-3, E-2, O-1, P and R-1 status);
-Form I-140 petitions filed on behalf of EB-1 Multinational Managers and Executives, as well as those filing for an EB-2 National Interest Waiver (NIW) for employment-based green cards;
-Form I-539 applications filed for individuals seeking to change status to F or M (student) status or J (cultural and educational exchange) status;
-Form I-765 applications for Employment Authorization Document (EAD) work authorization; and
-Any other immigration benefit type deemed appropriate by the Secretary.
Increases Premium Processing Fees:
While expanding the categories of immigration applications that can utilize premium processing, the bill also increases the premium processing fee for each. The cost for premium processing for currently eligible benefits will rise from $1,440 to $2,500, except for H-2B and R-1 petitions. For all other cases that will become eligible for premium processing services, USCIS must implement new rules based on the following guidelines:
– EB-1 petitions for Multinational Managers and Executives or EB-2 NIW petitions: fee cannot exceed $2,500 and processing time cannot exceed 45 days;
-Change of status requests for F, J and M: fee cannot exceed $1,750 and processing time cannot exceed than 30 days.
-Change of status requests for dependents seeking H-4, L-2, E-3D, E-2, O-3, P-4, R-2: fee cannot exceed $1,750 and processing time cannot exceed 30 days.
-EAD applications: fee cannot exceed $1,500 and processing time cannot exceed 30 days.
The Impact of Expanded & Increased Premium Processing:
The potential impact of this change cannot be overstated. Many applications or petitions take at least 6 months to be approved, and in the interim, applicants may find themselves unable to work, unable to attend school, or unable to obtain a Social Security number or driver’s license, among other things. For example, an individual who filed for a change of status to F-1 student status usually waits at least 6 to 12 months on a decision, and the applicant is usually unable to attend school while waiting. Similarly, an application for an EAD work permit can often take 6-8 months, during which time the applicant cannot work.
On the other hand, while we welcome the expansion of premium processing to more immigration benefits, the substantial increase in the premium processing fee from $1440 to $2500 for the currently eligible benefits (e.g. E-1, E-2, H-1B, L-1, O-1, P-1, R-1, TN, EB-1 for individuals with extraordinary ability, EB-1 for outstanding professors and researchers, EB-2 and EB-3 professionals) may significantly impact the bottom line of these foreign national employees and their U.S. employers.
Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you have questions about the new premium processing rule.
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