United States: Regulation To Expand USCIS Premium Processing Program Clears Federal Review
February 25, 2022
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At a glance
- A U.S. Citizenship and Immigration Services (USCIS) final rule that would expand premium processing to include additional case types has cleared the Office of Management and Budget, putting it closer to publication and implementation.
- The regulation implements Congress’s October 2020 legislation directing USCIS to expand premium processing service to a number of additional case types, including for applications for employment authorization (Form I-765) and nonimmigrant changes of status and extensions of stay for certain dependent family members (Form I-539).
- The specific contents of the final rule – including the case types eligible for premium processing, processing timelines, and corresponding fees and implementation dates – are not yet known, but implementation of the expansion is expected to be gradual and take place over several months or more.
The issue
A final regulation that would expand U.S. Citizenship and Immigration Services’ (USCIS) premium processing adjudication program to include several additional immigration benefit case types has been approved by the Office of Management and Budget (OMB), putting it a step closer to publication and implementation. The rule implements legislation that was signed into law in October 2020 as part of a stopgap budget measure. The rule will soon be published in the Federal Register and take effect according to the timeline detailed in the regulation.
The full contents of the final regulation are not yet known and will remain confidential until released for publication in the Federal Register, but the rule is expected to mirror the premium processing case types, fees, and timelines detailed in the October 2020 legislation. It is also expected that USCIS will implement premium processing for newly eligible categories in phases over the course of several months or more, instead of all at once.
Background
The premium processing expansion was included in Emergency Stopgap USCIS Stabilization Act, signed into law on October 1, 2020. The law authorized USCIS to implement a permanent expansion of premium processing to include additional immigration applications and petitions. Applications for employment authorization (Form I-765) and applications to change or extend status for the dependents of H-1B, L-1 and other principal nonimmigrants (Form I-539) – which are currently facing significant backlogs – were included in this list. In February 2021, USCIS expanded premium service to E-3 petitions, but since then, the agency has not initiated expansion to any other case types.
The October 2020 law also limits USCIS’ ability to suspend premium processing, permitting suspensions only where the agency cannot complete a “significant number” of premium requests within the required time period. Further, it requires the agency to provide petitioners and applicants with “direct and reliable” access to premium case status information and the ability to communicate with premium processing units at USCIS Service Centers.
Expansion of USCIS premium processing
Currently, premium processing is limited to certain Form I-129 nonimmigrant worker petitions and certain Form I-140 immigrant worker petitions, with a 15-day adjudication timeframe.
The revised fee schedule and timeframes set forth by the October 2020 legislation are as follows:
| Case Type | Processing Timeline | Premium Processing Fee |
|
Most Form I-140 EB-1, EB-2 and EB-3 petitions |
15 calendar days (current) |
$2,500 |
|
45 days | Not greater than $2,500 |
|
Form I-129 Nonimmigrant Worker Petitions |
15 calendar days (current) | $2,500 |
|
Form I-539 Change/Extension of Status to F, J or M |
30 days | Not greater than $1,750 |
|
Form I-539 Change/Extension of Status for E, H, L, O, P and R Dependents |
30 days | Not greater than $1,750 |
|
Form I-765 Application for Employment Authorization |
30 days | Not greater than $1,500 |
Next steps
The rule will soon be published in the Federal Register. An advance copy of the rule should be released just prior to publication, which will set forth the details of the expansion.
What it means
There is no immediate change to the premium processing program at this time. The existing premium program for certain I-129 and I-140 petitions remains available.
Employers and foreign nationals should prepare for the full implementation of premium processing expansion to occur slowly and in phases over several months or even longer.
Fragomen is closely following this rule and will provide updates as they become available.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
