United States: Regulation to Expand USCIS Premium Processing Program Under Federal Review
December 9, 2021
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At a Glance
- A U.S. Citizenship and Immigration Services final rule that would expand premium processing to include additional case types has been submitted to the Office of Management and Budget for review, putting it closer to publication and implementation.
- The regulation implements Congress’s October 2020 legislation which directed USCIS to expand premium processing service, 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.
- Once OMB clears the rule, it will be published in the Federal Register and become effective according to the terms of the rule. The timeline to implementation could be several months.
The issue
U.S. Citizenship and Immigration Services (USCIS) has submitted for federal review a final regulation that would expand the agency’s premium processing adjudication program to several additional immigration benefit case types. The rule is now under review at the Office of Management and Budget (OMB), putting it one step closer to publication and implementation. The rule implements legislation that was signed into law late last year as part of a stopgap budget measure.
The 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 identify the categories of case types newly eligible for premium processing, and the processing times, fees, and implementation timelines associated with each. It is possible that USCIS could implement premium processing for newly eligible categories in a delayed or staggered manner instead of all at once.
Background
This premium processing expansion was included in Emergency Stopgap USCIS Stabilization Act, signed into law on October 1, 2020. The law resulted in an immediate increase in the base fee for the existing program, to $2,500 from $1,440. It also required 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’s 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 |
| Form I-140 EB-1 Multinational Manager Form I-140 EB-2 National Interest Waiver Form I-140 EB-2 Physician |
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 OMB has 90 days to review the USCIS rule, but could take less or more time, depending on the circumstances. After OMB clearance, the rule will 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.
Fragomen is closely following implementation of the premium processing expansion 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.
