On March 30, 2022, the Biden administration will publish a final rule implementing the long overdue expansion of Premium Processing for employment-based immigration applications.  This rule implements the Emergency Stopgap USCIS Stabilization Act, which codifies Premium Processing fees and adjudication timeframes among other proposals for improvements to reduce processing times.

Premium Processing is a program which currently allows applicants to pay $2,500 in fees to have their cases reviewed within 15 days of filing. Premium Processing is now available only to petitioners filing a Form I-129, Petition for a Nonimmigrant Worker, and to certain employment-based immigrant visa (“green card”) I-140 petitions.

This final rule expands the categories of forms ultimately eligible for Premium Processing services, including Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; and additional classifications under Form I-140.

The rule will be implemented using a phased roll out of categories eligible for Premium Processing.

Phase 1 will include expanding Premium Processing eligibility to Form I-140 filers requesting EB-1 immigrant classification as a Multinational Executive or Manager, or EB-2 immigrant classification as a Member of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.  The filing fee will be $2,500.  USICS will be required to adjudicate this additional category of Premium Processing cases within 45 days.

It is not clear when Phase 2, Forms I-539 and I-765 will be implemented.  The USCIS announcement states that the implementation will be accomplished in phases in FY2022.  The Premium Processing time frame for these cases will be 30 days.

This final rule contains a change that may become significant.  The rule requires that the 15 day or 45 day processing time will not start until all “prerequisites for adjudication” have been submitted.  DHS interprets “prerequisites for adjudication” to at least require a complete, fully executed form completed in accordance with the form instructions, and all necessary evidence and information from interviews, biometrics submission, and background checks.  It is unclear how USCIS will interpret “all necessary evidence.”  Immigration attorneys often disagree with USCIS officers regarding what evidence is necessary for adjudication of a Multinational Manager or a National Interest Waiver.  Significant delays in Premium Processing may be in our future.

For more information on the Emergency Stopgap USCIS Stabilization Act see the USCIS press release.

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