The United States Citizenship and Immigration Services ("USCIS") has recently announced a modest expansion of its I-140 premium processing program to include cases filed on behalf of foreign nationals who have already reached their statutory six-year limit in H-1B status and who need an approved I-140 in order to extend beyond the six-year limit. Most recently, I-140 premium service was available only to otherwise eligible foreign nationals who were within sixty (60) days of their H-1B sixth-year expiration.
This change, which takes effect on March 2, 2009, will expand the I-140 premium processing program modestly, making it available to foreign nationals who departed the United States or switched to another nonimmigrant category after exhausting six years of H-1B time. Despite this change, the program will continue to be available only in very specific circumstances. I-140 premium processing is limited to those beneficiaries meeting the following criteria:
- They have used up the statutory six-year maximum H-1B period of stay, or will
reach the end of the sixth year within 60 days of the premium processing request;
- They are only eligible for additional H-1B time beyond the six-year
maximum under Section 104(c) of the American Competitiveness in the Twenty-First Century
Act of 2000 (AC21), which allows additional H-1B time to be granted in three-year increments
if the foreign national has an approved I-140 and is otherwise eligible for permanent residence but an immigrant visa is not available to him or her;
In its latest policy memo, the USCIS states that, when requesting a three-year H-1B AC21 extension, the beneficiary's I-140 immigrant petition must be approved, and the beneficiary's priority date must be unavailable, at the time of filing the H-1B extension request. The petitioner may not assume that the beneficiary's priority date will no longer be current or unavailable at some point during the adjudication of the H-1B extension petition. The USCIS adjudicators have been instructed to look to the Department of State's Visa Bulletin as of the filing date before approving three-year H-1B extension requests. - They are ineligible for additional H-1B time under AC21 § 106(a), which allows for
post-sixth year H-1B time to be granted in one-year increments if a labor certification or
I-140 petition was filed on the foreign national's behalf at least 365 days earlier; and
- The I-140 petition seeks classification in the first employment-based preference
(EB-1) subcategory for outstanding professors and researchers; the second employment-based
preference (EB-2) category for professionals with advanced degrees or exceptional ability
(except where a waiver of the labor certification requirement is sought in the national
interest); or the third employment-based preference (EB-3) category for professionals,
skilled workers or "other" workers.
Requesting I-140 Premium Processing
In order to obtain I-140 premium service, the employer must file Form I-907, the premium
processing request, along with a $1,000 government processing fee. The request can be made at
the time the I-140 is filed or while it is pending. Within 15 days of the filing of the request,
USCIS is required to approve, deny or take further action on the case. If the agency takes none
of these actions within 15 days, it must refund the fee.
We will provide further information as soon as it becomes available.
The full text of the USCIS memo may be found here: http://www.aila.org/content/default.aspx?docid=25599.
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