The Premium Processing Roller Coaster: What is the Fee Now, and Has it Been Expanded to Other Types of Immigration Benefit Requests?

Nilan Johnson Lewis PA
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Short Answer

The short answer is that the premium processing fee increased to $2,500 effective October 20, 2020, for all eligible I-129 and I-140 filings (except for H-2B and R-1 requests that increased to $1500), based on the Emergency Stopgap USCIS Stabilization Act that was part of the Continuing Appropriations Act 2021 and Other Extensions Act signed into law on October 1.

Although the Act gives U.S. Citizenship & Immigration Services (USCIS) authority to expand premium processing to other types of benefit requests, the agency recently said it is not yet taking that action. In other words, USCIS has not yet applied premium processing to I-765, I-539, or the other new benefit requests.

Background

Under regular processing, it can take months or sometimes over a year (and beyond) for a decision to be made by USCIS on an immigration-related petition or application. This delay can be extremely challenging for employers and individuals who have important decisions to make based on the outcome of these filings, such as hiring, workforce, and other business and life considerations. Premium processing, which requests faster adjudication of petitions within 15 days, can thus be an extremely important service for immigration-related filings. It comes with a high fee, however. The prior premium processing fee was $1440, which is now even higher.

On August 22, 2020, the House of Representatives passed HR 8089—the Emergency Stopgap USCIS Stabilization Act—in an attempt to forestall the impending USCIS furlough of about 13,400 employees due to budget shortfalls. One of the ways that HR 8089 intended to do this was by raising the premium processing fee.

On October 1, the President signed into law HR 8337—Continuing Appropriations Act, 2021 and Other Extensions Act—that includes language from the Emergency Stopgap USCIS Stabilization Act (HR 8089), raising the premium processing fee and authorizing the Department of Homeland Security to expand premium processing among other things.

The new fee imposed by the Act is now $2,500, which fee USCIS announced is effective as of October 19, 2020. Currently, premium processing service is only available for Form I-129 (Petition for a Nonimmigrant Worker) and Form I-140 (Immigrant Petition for Alien Worker) in certain classifications. A summary can be found on the website of USCIS here. In addition to raising the premium processing fee, the Act also authorizes USCIS to expand premium processing service to other immigration-related petitions and applications noted in our summary.

While premium processing is a valuable service, it is important to remember that it does not necessarily mean automatic approval of a petition or application within 15 days. Rather, it guarantees 15-day processing of the petition/application, which could mean approval, request for evidence, notice of intent to deny, or denial. As of now, the premium processing timeframe is 15 calendar days, although this will also likely change for some benefit types, as noted below.

Summary

  • Effective October 19, 2020, the premium processing fee increased from $1,440 to $2,500 for filings currently eligible for premium processing (except H-2B and R-1).
  • USCIS has not yet expanded premium processing to other types of benefit requests.
  • USCIS has not announced when it will expand premium processing to other requests;
  • The additional benefit requests to which USCIS may expand premium processing are:
    • EB-1 Multinational Executives and Managers (Form I-140)
    • EB-2 petitions with National Interest Waivers (Form I-140)
    • Change of status applications to F (academic students), J (exchange visitors), M (vocation students) (Form I-129)
    • Change of status or extension of status applications for family member dependents of those in E, H, L, O, P, or R status (such as H-4 dependents)
    • Application for employment authorization (Form I-765)
  • Again, however, USCIS has not yet expanded premium processing to these other types of benefit requests listed above, such as I-765 or I-539 applications.
  • The Fee and amount of time USCIS will have to adjudicate the above new benefit requests under premium processing varies according to type, ranging up to 45 days.

Nilan Johnson Lewis will continue monitoring developments in the availability of premium processing to immigration-related filings, including particularly employment-based petitions and family member dependents of those in H, L, E, O, and other eligible statuses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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