21 Feb Premium Processing: What is it? Who can file?
On February 15, USCIS announced that it would resume Premium Processing Service on February 19, 2019 for all categories of H-1B visa petitions filed on or before December 21, 2018. This is big news for H-1B employers and their employees; the last time Premium Processing was available to all H-1B categories was April 2, 2017.
WHAT IS PREMIUM PROCESSING?
Premium Processing is an optional upgrade service available for certain visa classifications, allowing for expedited processing of initial, renewal, and transfer employment-based visa petitions. For a fee of $1,410, USCIS will take an action (approval notice, denial notice, request for evidence, or fraud/misrepresentation investigation) in response to a visa petition within 15 calendar days. For H-1B employers, Premium Processing can be a highly advantageous option, and well worth the additional fee, considering a USCIS action/decision in response to an H-1B petition commonly processes in 6-8 months. With Premium Processing, new employees requesting H-1B classification obtain decisions that enable a mutually beneficial and hastened employment start date. This is especially true for H-1B transfer petitions, as without Premium Processing workers are forced to choose between delaying a start date with their future employer, or starting work on the receipt notice, with no guarantee of the petition’s outcome prior to giving up their current H-1B qualified role.
A BRIEF HISTORY
USCIS first introduced Premium Processing Service in 2001 for most petition classifications using Form I-129, Petition for Nonimmigrant Worker. In 2006, USCIS expanded Premium Processing to include most petitions using Form I-140, Immigrant Petition for Alien Worker. With so many applications for Premium Processing being filed year after year, USCIS felt compelled to start placing limitations and temporary suspensions on Premium Processing in order to re-allocate its capacity in tending to other caseloads that were falling behind schedule. Due in part to the volume brought by its popularity, the H-1B program has been the target of most of these actions to conserve USCIS’ resources.
For fiscal years 2014 to 2017, USCIS delayed the use of Premium Processing for cap-subject H-1B petitions, requiring employers to anxiously wait for the return of the service to ensure continued employment of their foreign nationals. Cap-subject H-1B petitions (those subjected to the lottery system each year) are submitted in April each year for an October 1 start date in the same year. Even with a 6-month delay between submission and start date, without Premium Processing there is no guarantee that a petition will be adjudicated by October 1.
In 2015, USCIS temporarily suspended Premium Processing for cap-subject H-1B petitions due to the increased caseloads brought about by opening up eligibility for H-4 dependent spouses of H-1B holders to apply for an Employment Authorization Document.
On March 3, 2017, USCIS made the unprecedented announcement that Premium Processing would be suspended for all H-1B petitions beginning April 3, the earliest date H-1B Cap-Subject Petitions would be accepted for processing by USCIS for the Fiscal Year 2018. While the announcement did not provide an end date, USCIS stated the suspension could last as long as 6 months. Therefore, no H-1B petitions for the Fiscal Year 2018 would be eligible for Premium Processing. Whereas previous suspensions reflected efforts by USCIS to manage its resources to meet various other caseloads, this suspension was thought by some commentators to be a product of the Trump Administration’s aims to reform the U.S. immigration system, citing displacement of U.S. workers. This suspension was lifted on September 18, 2017, enabling employers to obtain last-second approvals needed for continued employment of their foreign national workers as of October 1, 2018.
On March 20, 2018, USCIS announced it would again suspend Premium Processing for all cap-subject H-1B petitions, this time for the Fiscal Year 2019, with the suspension to last until September 10, 2018. However, rather than reinstating Premium Processing in September, USCIS announced on August 28, 2018 that it would extend the suspension of Premium Processing for cap-subject H-1B petitions, as well as all other types of H-1B petitions (except cap-exempt employers). This temporary suspension was announced to last through February 19, 2019, which brings us to the February 15, 2019 announcement that Premium Processing is reinstated for all H-1B petitions filed on before December 21, 2018.
The suspension continues for newly filed H-1B petitions, including transfer H-1B petitions and is presumed to continue through this year’s H-1B cap season beginning on April 1, 2019.
This latest announcement provides much-needed relief for many H-1B visa holders and hopefuls. As of late January, many Fiscal-Year 2019 H-1B filers were still waiting for their cases to be decided, when they had originally hoped to obtain or renew by October 1, 2018. However, as the announcement also leaves the upcoming wave of new H-1B petitions subject to the cap for the Fiscal Year 2020 without the ability to use Premium Processing, so H-1B employers and employees are faced with another potential delay extending past October 2019.
WHO CAN FILE?
Below are two tables taken from USCIS’ web page, https://www.uscis.gov/forms/how-do-i-use-premium-processing-service, showing all of the visa classifications eligible for premium processing. To recap, as of now, ALL H-1B petitions filed on or before December 21, 2018 are eligible for Premium Processing. For all cap-subject H-1B petitions filed on or after December 22, 2018, Premium Processing is NOT available.
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Form I-129, Petition for Nonimmigrant Worker
| Designated Classification Within Form I-129 | Corresponding Nonimmigrant Classification |
| Treaty Trader | E-1 |
| Treaty Investor | E-2 |
| Alien in Specialty Occupation | H-1B |
| Temporary Worker performing nonagricultural services | H-2B |
| Trainee or Special Education Exchange Visitor | H-3 |
| Intracompany Transferee, Executive or Manager Capacity | L-1A |
| Intracompany Transferee, Specialized Knowledge Professional | L-1B |
| A petitioner meeting certain requirements which seeks continuous approval of itself and some or all of its parents, branches, subsidiaries, and affiliates | LZ(Blanket L-1) |
| Alien of extraordinary ability or achievements in the sciences, arts, education, business, or athletics | O-1 |
| Alien providing essential support services for a principal O-1 alien | O-2 |
| Internationally recognized athlete or member of an internationally recognized entertainment group | P-1 |
| Essential Support Alien, highly skilled, who performs support services essential to the successful performance of the principal P-1 alien | P-1S |
| Artist or Entertainer under a Reciprocal Exchange Program | P-2 |
| Essential Support Alien, highly skilled, who performs support services essential to the successful performance of the principal P-2 alien | P-2S |
| Artist or Entertainer in a Culturally Unique Program | P-3 |
| Essential Support Alien, highly skilled, who performs support services essential to the successful performance of the principal P-3 alien | P-3S |
| International cultural exchange alien | Q-1 |
| Alien in a Religious occupation | R-1 |
| NAFTA professional, Canada | TN-1 |
| NAFTA professional, Mexico | TN-2 |
Form I-140, Immigrant Petition for Alien Worker
| Designated Classification Within Form I-140 | Corresponding Employment-Based (EB) Immigrant Visa Classification |
| Aliens of extraordinary ability | EB-1 |
| Outstanding professors and researchers | EB-1 |
| Multinational executives and managers | EB-1 |
| Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver | EB-2 |
| Members of professions with advanced degrees or exceptional ability seeking a National Interest Waiver | EB-2 |
| Skilled workers4 | EB-3 |
| Professionals4 | EB-3 |
| Workers other than skilled workers and professionals | EB-3 |