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Detailed Analysis Of Premium Processing For I-140s

by Sheela Murthy

Many are awaiting the start of the premium processing option for I-140 immigrant petitions for foreign national workers, which is NOT yet available. According to all indications from USCIS, however, it should be announced soon. In anticipation, we are evaluating the possible benefits of using premium processing for I-140 petitions. This aticle addresses matters relating to filing H1B extensions and issues relating to the "green card," or permanent residency processing.

Premium Processing Defined

For an additional fee of $1000, the USCIS will process the designated form within 15 calendar days of receipt. This is called Premium Processing. 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.

Eligibility for I-140 Premium Processing

Once premium processing is initiated, this service will be available for the following employment-based immigrant visa classifications:


  • EB1 Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Executives and Managers
     
  • EB2 Professionals with Advanced Degrees or Exceptional Ability who are NOT seeking a National Interest Waiver
     
  • EB3 Professionals and Skilled Workers

Note that I-140 premium processing will NOT be available for National Interest Waiver (NIW) petitions. NIW petitions are complicated and require significant time for detailed review. Although many Extraordinary Ability (EA) and Outstanding Professor / Researcher (OPR) cases are similarly complex, they will be eligible for premium processing.

Analysis : Pros and Cons of Premium Processing and H1B Extensions

Premium processing means one will receive an I-140 decision in an expedited fashion. This is beneficial to those who want to take advantage of AC21 portability or some of those who need extended time in H1B status.

One-Year Extensions 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. This would not be impacted by premium processing, generally, since it is measured from filing time, not the date of approval. If the I-140 petition has possible problems, a person in this situation may be disadvantaged by using premium processing for the I-140 petition. The H1B extension would not be possible under this rule if the I-140 petition were to be denied, unless the denial was appealed. Thus, using premium processing and expediting a denial would not make one eligible for a three year extension, and it would make the one-year extension more difficult.

Three-Year H1B Extensions  A 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 (nonavailability 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. By gaining the I-140 approval, one is able to obtain the H1B extension for three years. This is more advantageous than one-year H1B extensions in terms of expense and effort. It also avoids other inconveniences associated with the one-year H1B extensions, including repeated one-year driver's license renewals required in some states to match one's length of status.

One-Year Filing Rule Does Not Apply if I-140 Petition is Approved  There is some misconception on this issue. Some people confuse the rules and incorrectly surmise that the three-year H1B extension rule requires that the LC was filed at least one year prior. In fact, the rule that allows for a three-year H1B extension, based on an I-140 petition approval and the retrogression of dates, does not have a 365-day requirement. It is sufficient for one to have the I-140 approved and the priority date retrogressed. Thus, by using the PERM labor certification process (or a labor-exempt category or labor substitution) and I-140 premium processing, an individual potentially could be eligible for a three-year extension of the H1B in less than 365 days time. This could be very helpful in many situations, including those where an older green card case is denied and a new green card case can be filed within time to permit an extension of the H1B.  

Conclusion

Premium processing can be a valuable, strategic tool in connection with three-year H1B extensions. There will be many cases in which the advantages outweigh the cost. Once the option to have one's I-140 premium processed becomes available, this filing should be carefully considered with an experienced and qualified immigration attorney.


This article discussed some of the pros and cons of I-140 premium processing as it relates to H1B extensions. The article also addresses the I-140 premium processing as it relates to green cards. Once again, as of this writing, I-140 premium processing is NOT yet available. It is anticipated in the near future, and will be announced once it becomes a reality.


Summary of Premium Processing Procedures

Premium processing is a procedure by which the U.S. Citizenship and Immigration Services (USCIS) will review a particular application / petition within 15 calendar days of receipt. The fee for this expedited service is $1,000. Once it goes into effect for I-140 petitions, all EB1, EB2, and EB3 filings will be eligible, with the exception of National Interest Waiver cases.

Analysis : Pros and Cons of Premium Processing

AC21 Portability


Obtaining approval of an I-140 petition in an expedited manner can be beneficial to those who want to take advantage of AC21 green card portability. AC21 portability allows for the approval of an employment-based green card case based upon a job offer from an employer other than the employer that filed the labor certification and/or I-140. The new job must be in the same or similar job category. In order to safely use AC21 for this purpose, the labor certification (where required) and I-140 must be approved, and the I-485 must be pending at least 180 days. (While we are aware that AC21 portability still applies even if the I-140 is approved after the job change, since it must be approved in order for the green card case to be approved, we think it is best not to change jobs until the approval is issued.)  Thus, the ability to expedite the I-140 decision can mean that the eligibility for AC21 portability will arise earlier, and that the change of employers will be safer. Premium processing can also offer some benefits unrelated to AC21 with respect to employment flexibility.


Approved I-140s and Job Mobility - Transfer of the Earlier Priority Date

The priority date from an approved, valid I-140 petition may be transferred to a new I-140 petition. This is another situation in which premium processing would prove advantageous. Since I-140 premium processing would allow for faster approval of the I-140 petition, the priority date potentially then would be available for transfer to a later-filed employment-based green card case, at the I-140 stage. This later-filed I-140 petition could be with the same employer (for a different job) or with a new employer in a new position.

Transfer of the Earlier Priority Date: EB3 to New EB2

The ability to transfer priority dates from an earlier, approved, I-140 to a later-filed I-140 could provide an alternative for job mobility, both within the current employer's organization or with a new employer. This would be helpful for those who want to make a change but are not eligible to file the I-485 application because of retrogression. It also could help people who are eligible to change from an EB3 classification to EB2. One would be eligible to request a transfer of the priority date from the earlier-filed EB3 petition to a new EB2 petition once the I-140 is approved. The new EB2 petition would need to be based upon a new LC for a position requiring the EB2 level of education and/or experience. (Over time, many people with EB3 cases have become eligible for EB2 cases due to increased experience and/or education, and promotions.)

This strategy potentially could shave off a few years in the queue for available immigrant visa numbers. This may be particularly appealing to those who had EB3 labor certifications filed on their behalf long ago and have had their cases pending while they have gained advanced degrees, acquired several more years of experience, and/or are offered jobs at higher levels. Keep in mind, though, that this involves filing a whole new LC under the PERM system for a new job opportunity and that the employer must actually require the additional degree and/or experience for all persons holding that job classification in order for the new case to be filed as EB2.

I-140 Premium Processing and the Possible End of Concurrent Filing

Indications are that, in the near future, the USCIS will discontinue the combined processing of I-140 petitions and I-485 applications for adjustment of status. This process of combined filing is referred to as “concurrent filing.” Those affected by retrogression have been unable to take advantage of the concurrent filing of an I-485 with the I-140 for quite some time. The possible end of concurrent filing will affect all categories of workers, from all countries, and will be a return to the system that previously was in place. This means that the I-140 petition will have to be approved before the I-485 can be filed. The filing of the I-485 or adjustment application will still require that an immigrant visa number be available in the particular category. So, the approval of the I-140 petition alone will not necessarily mean that the I-485 can be filed. However, there would be instances where the ability to obtain an I-140 approval would be extremely helpful, and would allow an I-485 could be filed at a point when the visa numbers were available, since the cut off dates can move backwards as well as forwards. We at the Murthy Law Firm will keep our readers informed if and when concurrent filing ends. Indications are that the end of concurrent filing will coincide with the start of I-140 premium processing.

The possible end of concurrent filing will mean that applicants for permanent residence cannot submit their I-485 applications for adjustment of status until their respective priority dates are current and their I-140s have been approved. Thus, one with a current or soon-to-be available priority date, premium processing of the I-140 would expedite the I-485 filing eligibility.

I-140 and Consular Processing

Another possible option with I-140 premium processing is to select consular processing. For persons with priority dates that are current or close to current, this may be worth considering. If consular processing is selected as an alternative to the I-485 filing, the case potentially could be completed faster than an I-485. The visa number would need to be available for the issuance of the immigrant visa at the consulate abroad. Some people will try to use consular processing in a race to get their cases approved during a time when visa numbers are available. This strategy was often used in the past. It was more advantageous before AC21, however. Since AC21, there is possible job mobility after the I-485 is filed. On the other hand, if consular processing is selected, and the visa numbers become unavailable, the case is not portable to a new employer if the person never filed the I-485.

Cons of I-140 Premium Processing

The implementation of premium processing may cause delays in the processing of other I-140 petitions that are filed without the payment of the additional $1000 premium fee. This happened when premium processing was implemented for the I-129 nonimmigrant worker petitions in June 2001. A February 2003 Audit Report found that the premium processing program caused delays in processing routinely-filed cases.

With a large number of employers and/or beneficiaries paying an extra $1000 to have their I-140 petitions adjudicated in 15 days, those who do not pay a premium may find that it takes longer than usual to have their I-140s reviewed and adjudicated. Nevertheless, paying an extra $1000 for an I-140 is not necessary for those who are in the first few years of H1B status and who intend to remain with their I-140 sponsors, at least for the immediate future.

What Premium Processing Does NOT Do

Even though premium processing means getting an I-140 approval more quickly, and thus, potentially, three-year extensions in H1B status, for those affected by retrogression it does NOT guarantee that an applicant will get a green card sooner. In order to file the I-485, one still must wait until his or her priority date is current. At this time, premium processing is NOT available and is not expected to become available for I-485 applications for adjustment of status to permanent resident.

Conclusion

Premium processing of I-140 petitions can be a valuable, strategic tool in many situations. There will be many cases in which the advantages will outweigh the cost. We do hope that it will not increase regular I-140 processing times, disadvantaging those who cannot afford it or those who chose not to use this service.


This article originally appeared in MurthyBulletin on www.murthy.com. Reprinted with permission.


About The Author

Sheela Murthy is the founder of the Law Office of Sheela Murthy, P.C. which consists of over 45 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Office of Sheela Murthy, P.C. handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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