|The U.S. Citizenship and Immigration Services (USCIS) announced that starting March 2, 2009 it will expand Premium Processing Service (form I-907) requests for I-140 (Immigrant Petition for Alien Worker) forms filed on behalf of alien workers whose six years of H-1B stay has reached its limit. This is a significant expansion because current I-140 premium processing is only available to certain EB-2 and EB-3 category alien beneficiaries who are within 60 days of reaching the limit of their six years of H-1B stay. |
With the expansion, I-140 premium processing services will be extended to cases that meet the following conditions:
1. The I-140 is being or has been filed based on an EB-2 or EB-3 labor certification, and
2. The alien beneficiary will reach the six year H-1B limitation within 60 days, or the alien has reached six year H-1B limitation; and
3. The alien beneficiary is NOT eligible for a one year H-1B extension based on an immigration case that is filed 365 days before the expiration of the H-1B six years limitation under AC 21 Section 106(a); and
4. The alien is only eligible for a further H-1B extension upon approval of his or her I-140 petition under AC21 Section 104(c); and
5. An immigrant visa number is not available for the alien beneficiary due to visa number retrogression.
Since immigration visas are immediately available in the EB-1 category, it does not qualify for AC 21 Section 104(c) and therefore, does not qualify for the premium processing. Nor do EB-2 NIW petition qualify for premium processing as USCIS has clearly excluded NIWs in the new announcement. NIW has never been included in premium processing service. However, EB-1 beneficiary, if not be able to extend H-1B, may file I-485 concurrently with I-140 and obtain Work Permit and legally resides in the US as the visa number is immediately available,
After considering all the restrictions, the new expansion will apply to the EB-3 category for alien beneficiaries worldwide and EB-2 category China or Indian born alien beneficiaries only. Visa numbers for EB-2 alien beneficiaries who were born in countries other than China and India are currently immediately available. Therefore, those alien beneficiaries are eligible to file I-140/485 concurrently if they are in the U.S. or, if overseas, apply for an immigration visa through consular processing after the I-140 is approved.
USCIS guarantees it will process the premium processing applications within 15 calendar days for an additional processing fee of $1,000.
Back in July 2, 2007, the USCIS temporarily suspended the Premium Service for all I-140 petitions. Since then, our firm has been actively advocating the resumption of I-140 premium processing services. A sample of our efforts may be seen at Help Us Push USCIS to Resume the I-140 Premium Service Under pressure from our firm and many other pro-immigration groups and businesses, the USCIS partially resumed premium processing on June 16, 2008 for certain alien beneficiaries. However, the resumption in June 2008 did not benefit those whose six years of H-1b had expired.
The new I-140 premium processing expansion starting in March 2009 is a positive step by the USCIS to improve its service to US businesses. It will definitely benefit both employers and alien beneficiaries. Those who have been forced to leave the country or change to other non-immigrant statuses due to the six year of H-1B limitation, if qualified for I-140 may receive I-140 approval within a very short period of time which will enable them to extend H-1B on a three year basis. If they are in the US, they may file H-1B petition to receive three years of extension; if they are overseas, their employer can apply for an H-1B petition with the USCIS, and the alien can apply for H-1B visa to reenter after the petition is approved.
However, even with the expansion, I-140 premium process still has limited application. We urge USCIS to gradually expand premium process to a broader scope in the near future. As a short term goal, we hope the USCIS will expand premium processing to all EB-1, EB-2 (except NIW), and EB-3 cases. Ideally, when USCIS resources become available, NIW petitions should be included in premium processing as well. We encourage you and your employer to contact you US Senators and Representatives to push the USCIS on this end. In mid-March, Attorneys Ben Wisniewski and Joe Jian Zhou will be lobbying with Congress at Capitol Hill for the National Day of Action organized by the American Immigration Lawyers Association. Further expansion of I-140 premium service is part of their lobby agenda.
*Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 8 years of experience in employment/business immigration and international law practice, with a proven record of hundreds of successful Labor Certification, PERM, NIW, EB-1 cases. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at firstname.lastname@example.org .
At 10:30am~12:00pm CST on Saturday Feb. 28, 2009, Attorney Jane Xu will hold a seminar in English at our Houston office. She will talk about H-1B, NIW, EB-1, etc. If you are interested in this seminar, please click the following link to register: