United States: DHS Issues Final Rule to Expand USCIS Premium Processing Program in Phases

The final rule takes effect 60 days after publication in the Federal Register, but the actual implementation of expanded premium processing will be phased in over a period of at least three years and is likely to impose conditions or limitations on the availability of premium service.

By September 30, 2022, the end of this fiscal year, USCIS plans to expand premium processing eligibility to Form I-140 immigrant worker petitions in the EB-1 Multinational Manager and EB-2 National Interest Waiver (NIW) categories, Form I-539 applications to change to F, J, or M nonimmigrant status, and Form I-765 applications for F-1 OPT and J exchange visitor employment authorization. USCIS will announce on its website the premium processing availability details and any conditions that may apply.

The expanded list of eligible case types, revised fee schedule, and processing timeframes set forth in the final rule are as follows.

 

Case Type	Processing Timeframe*	Premium Processing Fee**	Expected Implementation Timeline
Most Form I-140 EB-1, EB-2, and EB-3 petitions	15 calendar days (current)	$2,500	Current
Form I-140 EB-1 Multinational Manager & Form I-140 EB-2 National Interest Waiver (NIW)	45 calendar days	$2,500	FY 2022
Form I-129 Nonimmigrant Worker Petitions except H-2B and R	15 calendar days (current)	$2,500	Current
Form I-129 Nonimmigrant Worker Petitions for H-2B and R	15 calendar days (current)	$1,500	Current
Form I-539 Change of Status to F, J, or M	30 calendar days	$1,750	FY 2022
Form I-539 Change or Extension of Status for E, H, L, O, P, and R Dependents	30 calendar days	$1,750	FY 2025
Form I-765 Application for Employment Authorization for F-1 OPT and J exchange visitor EADs	30 calendar days	$1,500	FY 2022
Form I-765 Application for Employment Authorization for not yet specified additional group of EAD applicants	30 calendar days	$1,500	FY 2025

* The “processing timeframe” refers to the deadline by which USCIS must issue either an approval notice, a Request for Evidence (RFE), a Notice of Intent to Deny (NOID), or a denial notice.

** Consistent with the provisions of the enabling legislation, the Final Rule also permits USCIS to adjust the premium processing fees on a biannual basis, based on changes in the Consumer Price Index for All Urban Consumers (CPI-U).

USCIS is expected to make an announcement on its website as each new case type becomes eligible for premium processing. The website announcement may also place conditions on the availability of premium processing for new case types. Such conditions may include limiting the availability of premium processing to cases that have been pending for a minimum period of time, or delaying the start of the premium processing clock for administrative reasons, such as the running of a required selection lottery.

In addition, for new case types becoming eligible for premium processing, the processing clock will only begin to run upon the date USCIS receives “all prerequisites for adjudication”– meaning that the agency would begin to count the processing timeframe only after it receives all necessary documentation, information from interviews, biometrics, or background checks, as appropriate for the case type. Depending on the case type and its requirements, this means that petitioners and applicants could wait longer than the official premium processing timeframes to see action on their cases.

In a related development, in an effort to reduce backlogs and lengthy processing times, USCIS also announced a forthcoming temporary final regulation that is expected to temporarily expand the automatic extension of Form I-765 employment authorization for certain renewal applicants. It is not yet clear whether the final regulation would lengthen the automatic extension period, expand the categories of EADs eligible for the automatic extension, or both. 

Until the final rule takes effect and USCIS announces the premium processing availability details for the newly eligible cases, premium processing will only be available for the currently eligible I-129 and I-140 petition case types. Employers and foreign nationals can begin working with their Fragomen professional to review pending cases in the affected case types for which premium processing is slated to take effect this fiscal year to identify time-sensitive cases that merit consideration for upgrading to premium processing when the case type becomes eligible.

However, employers and foreign nationals should be aware that USCIS does not intend to include all EAD applications in the premium processing program. The final rule suggests that a substantial percentage of EAD application case types may ultimately not benefit from premium expansion. This fiscal year, only F-1 OPT and J exchange visitor EAD applications are expected to become eligible for premium processing, categories which DHS indicates represent only about 10% of EAD application filings. Expansion to other EAD categories is not expected until FY 2025, and although the rule does not identify which other EAD categories may become eligible in that year, data provided in the final rule suggest that the FY 2025 expansion may cover only an additional 5% or so of overall EAD filings.

Fragomen will be closely monitoring the implementation of premium processing expansion and will issue further client alerts as USCIS announces premium processing availability for new case types.