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Premium Processing Guide for EB-1(A) and EB-1(B) I-140 applications


BY Tejas Shah, Attorney at Law (tshah@hooyou.com) [ May 25, 2010 at 00:02:28 ]

On June 29, 2009, the USCIS resumed the Premium Processing Service for the EB-1(A) (Alien of Extraordinary Ability), EB-1(B) (Outstanding Researcher), EB-2 (except NIW), and EB-3 categories. For payment of an extra $1000 filing fee and after submitting the I-907 form, the applicant is guaranteed a decision (Approval, Denial, Request for Evidence (RFE), or Notice of Intent to Deny (NID)) within fifteen (15) days of submission, and another response within this time period if a RFE or NID response is submitted. Since USCIS resumed premium processing, we have filed hundreds of cases in these categories using both the regular process and premium processing. One question we commonly encounter from applicants, especially in the EB-1A and EB-1B categories, is whether they should select premium processing or not. This brief overview is intended to describe our experience and to help you make the right decision. Nothing herein is intended to provide legal advice and this does not substitute for the counsel of an actual attorney.

The obvious advantage of Premium Processing is speed. For applicants who have impending status issues that necessitate the filing of an I-485, but would rather have the decision on their I-140 before making the investment in an I-485 (which can be substantial if multiple family members will be adjusting status), this is a considerable advantage that provides finality and clarity regarding the outcome, and will help the applicant plan next steps.

(i) For a client whose status is going to expire in 3-4 months, but is unsure what option to pursue (file an I-485 concurrently with the EB-1 I-140, apply for H-1 extension, etc.), premium processing would allow them to secure a decision well within that timeframe and file an I-485 application as well. This is clearly a significant benefit.

(ii) Another commonly encountered situation is a self-sponsoring individual whose case is competitive for an EB-1A but is far from a guaranteed approval. While we often advise clients, especially Indian and Chinese nationals (for whom the EB-2 NIW category is not current), to consider an EB-1A as well to support immediate adjustment of status, some clients prefer to take one petition at a time. Moreover, the risk of denial of the EB-1A is a significant factor to consider. One way to address these concerns is to file the EB-1A first using premium processing, and if an adverse decision is rendered by USCIS, to file the NIW immediately afterwards. Using Premium Processing in place of regular processing in this instance presents several advantages. First, since the NIW category as EB-2 has a significant backlog in immigrant visa number for Indians and Chinese nationals and the applicant benefits from establishing an earlier priority date (defined as the date that the I-140 is filed – in this case, the date that the NIW I-140 is filed) by filing NIW, it is better to get a decision sooner rather than later. Second, in the event that a NIW petition is necessary, the evidence is fresh and will not require significant modification since the timeframe is much shorter.
On the other hand, selecting premium processing is an expensive proposition, and it does carry some drawbacks. First and foremost, a quick decision means that the weight of evidence submitted in response to a RFE will likely be the same as the initial petition. For many clients who may have citation statistics for their publications that continue to increase at a steady clip, the weight of evidence submitted when responding to a RFE in regular processing (which would be likely issued a full 3-4 months after submission, at the minimum) by comparison to premium processing (15 days or less) could be substantially different. While the USCIS is technically not bound to consider any evidence after the date the petition is filed, citations are treated as evidence of the impact of previously-submitted publications and are therefore generally always considered in the body of evidence. This important strategic point should be considered in consultation with your attorney.

Second, there are some indications that examiners do not engage in a thorough examination of the evidence submitted initially on premium processing, and instead tend to resort to frustrating “blanket” RFEs that require generalized evidence of impact. This can be stressful to deal with because, presumably, the applicant and attorney have fully considered all sources of evidence in preparing the case the first-time around, and limited additional evidence would be available in the fifteen days after submission. However, this issue can be addressed by focusing on the fact that the RFE is often not about the weight of the evidence, but about the quality of the evidence. Thus, additional evidence to substantiate the impact of previously submitted proof of citations or service as a reviewer, in the form of reference statements from scientists who have cited the applicant’s work or those who have invited him/her as a reviewer for journals/conferences, can result in an approval. The applicant must be prepared to do some significant work during this period in responding to the RFE under the attorney’s guidance. However, there is no indication that the outcome on Premium Processing vs. general processing is any different. Thus, while the process may be different and more stressful in some cases, it will often tend to be the same outcome.

In closing, Premium Processing is an important tool and an excellent resource for many applicants in the EB-1 category especially. However, it may not be the right tool for everybody, and it is essential that you consult with your attorney and consider his/her advice before deciding whether or not to select this option. Here at Zhang and Associates, we have unparalleled experience in filing I-140 cases using premium processing and we encourage you to consult with one of our attorneys.


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