United States: USCIS Expands Premium Processing Eligibility to All EB-1 Multinational Manager and EB-2 National Interest Waiver I-140 Filings, Including New Petitions

In its last expansion phase, effective January 30, 2023, USCIS will begin accepting premium processing requests for:

• All pending and initial EB-1 Multinational Executive and Manager I-140 petitions; and
• All pending and initial EB-2 NIW I-140 petitions.

USCIS has 45 days to take action on I-140 petitions seeking premium processing in these two categories. However, the revised regulations provide that the processing clock will only begin to run upon the date USCIS receives “all prerequisites for adjudication” – meaning that the agency may not begin to count the 45-day processing timeframe until it determines that it has received all necessary documentation appropriate for the case type. Depending on the case type and its requirements, this means that petitioners could wait longer than the specified 45-day timeframe to see action on their cases. If a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) is issued, a new 45-day period would begin once USCIS receives the petitioner’s response to the RFE or NOID.

The premium processing filing fee for these two categories of cases is currently $2,500. USCIS is authorized to adjust premium processing fees on a biannual basis, based on changes in the Consumer Price Index for all Urban Consumers (CPI-U). However, in the agency’s new proposed fee schedule, released on January 3, USCIS maintained the $2,500 premium processing fee.  The proposed fee schedule would also extend the premium processing adjudication period from 15 calendar days to 15 business days, a change that would effectively increase premium processing adjudications by one week. (The proposal will not take effect until it has cleared the regulatory review process, including a period of public notice and comment.)

USCIS has also announced its plans to further expand premium processing to certain F-1 students seeking Optional Practical Training (OPT) and STEM OPT on Form I-765, and certain students and exchange visitors seeking to change or extend status on Form I-539. According to USCIS, its anticipated timeline for the next expansion phases are as follows:

• March 2023 – expansion to pending Form I-765 applications filed by certain F-1 students seeking OPT and STEM OPT
• April 2023 - expansion to F-1 students filing initial Forms I-765 seeking OPT and STEM OPT
• May 2023 – expansion to certain student and exchange visitors with pending Forms I-539
• June 2023 – expansion to certain students and exchange visitors filing initial Forms I-539

USCIS says it will announce details on the Form I-765 phase of premium processing expansion in February 2023. The agency could change its projected timeline at that point.

This initiative is part of USCIS’s previously announced incremental expansion of premium processing to certain additional form types over a period of at least three years. USCIS first announced expansion of premium processing to certain pending EB-1 Multinational Executive and Manager and EB-2 NIW petitions in May 2022. Then in July and September 2022, the agency announced modest expansions in the scope of pending petitions eligible for a premium processing upgrade in these two categories. In each Form I-140 expansion announcement, the agency reiterated its plan to expand premium processing to certain applicants filing Form I-765 and Form I-539 in its next phase.

Employers and foreign nationals should begin working with their Fragomen professional to identify new I-140 cases for which premium processing will be available starting January 30, and determine whether premium processing should be requested.

In February, USCIS is expected to release more detail on the upcoming premium processing expansion for certain F-1 students seeking OPT and STEM OPT on Form I-765. The timing for an announcement with further details on the Form I-539 expansion is not yet known.

Fragomen is closely monitoring the implementation of premium processing expansion, and further client alerts will be issued as developments occur.