August 18, 2006
USCIS announced today the initiation of premium processing service for EB3 (employment based, third preference) I-140 petitions for professionals and skilled workers beginning August 28, 2006. The EB3 "Professionals" category is for positions requiring an individual holding a bachelor's degree who are members of the professions; the EB3 "Skilled Worker" category is for positions requiring at least two years of education, training or experience.
Under the Premium Processing Service, petitioners pay an additional processing fee of $1,000, and in return, USCIS promises to issue either an approval notice, or where appropriate, a request for evidence, a notice of intent to deny, or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service.
Premium processing may be requested when an employer initially files a petition, or it may be requested when a petition is already pending. Accordingly, starting on August 28, employers will be able to "upgrade" any pending I-140 petitions to premium processing.
Given the severe priority date backlog currently affecting the EB-3 category, it is unlikely many petitioners will opt for premium processing since getting an I-140 approval sooner without a "current" priority date does not mean the foreign national employee will be able to adjust his/her status to permanent residence any sooner. However, for H-1B employees whose H-1B status will reach the six-year limit in less than one year, premium processing of I-140 can be of tremendous benefit. This is because the American Competitiveness in the Twenty-First Century Act (AC21) allows one to extend his/her H-1B status beyond the normal six year limit if that person is the beneficiary of an EB1, EB2, or EB3 I-140 petition, and is eligible to be granted that status but for application of the per country limitations (i.e., priority date retrogression). In such cases, getting an I-140 approval before the H-1B employee reaches the end of his/her sixth year will allow the employee to stay and continue working without
It is expected that Premium Processing Service will be expanded to include I-140 petitions for other preference categories in the near future (e.g., EB1 and EB2 categories).