By Attorneys Robert L. Reeves and Joseph I. Elias
On August 28, 2006 the USCIS began offering employers the option for expediting immigrant visa petitions for workers. Since this date, we received many inquiries about this program. There are incorrect rumors and myths flying about and we believe it is important to set the record straight.
The expedited program is only available for two employment-based categories known as the EB-3 Professional and the EB-3 Skilled Worker. EB-3 Professionals are immigrant workers with bachelor degrees who are members of the professions while EB-3 Skilled Workers are immigrant workers performing skilled labor requiring at least two years of education, training or experience. The program is not available for family-based petitions. Employers must pay an additional fee of $1,000 to the CIS for adjudication within 15 calendar days. If the CIS cannot adjudicate the case within the 15 days, the $1,000 premium-processing fee will be returned to the employer.
So, who can benefit from this program? Perhaps the most important group that can benefit are H-1B workers in the EB-3 category who are about to complete their 6th year in H-1B status. H-1B status may be extended for an additional 3 years beyond the 6th year if the worker has an approved immigrant visa and is waiting for his priority date to become current. If the immigrant visa petition is not approved, and depending on when the labor certification was filed, the H-1B worker may only extend status in one-year increments. The ability to have a three-year extension will provide substantial savings n legal fees, CIS filing fees and time.
Having an approved immigrant visa petition also provides peace of mind and comfort for workers and employers. They are assured that two out of three major steps to permanent resident status have been completed. This peace of mind is worth its weight in gold to some. Premium processing can also be beneficial to those EB-3 candidates whose priority date is about to become current. Having a quickly approved immigrant visa petition brings them one step closer to adjusting status.
Some of the false rumors are that premium processing is available for labor certification and adjustment applications. Premium processing does not extend to adjustment of status applications (commonly known as the I-485). These must continue in the normal processing queue which can range from 6 months to 1.5 years. The CIS has indicated that sometime in the future it may be able to accommodate these types of applications under the program. Premium processing also does not expedite processing of labor certifications whether through PERM or those cases at the backlog reduction center. The labor certification program is administered by the Department of Labor, so the CIS has no control of the adjudication timetable of these cases. Premium processing is not available for all EB-3 petitions. The CIS will not accept EB-3 premium processing for a second I-140 while the first one is still in process. Premium processing is not available for cases where the beneficiary is being substituted for the person listed on the labor certification. The final limitation is premium processing is not available for those cases where the original labor certification was lost and the CIS needs to obtain a duplicate from the Department of Labor.
Another misconception about the program is that the 15- day clock is an absolute clock. If the CIS sends a request for additional evidence (RFE), a new 15-day calendar period starts on the day the employer responds.
Premium processing can be beneficial to many as long as one understands the extent of the program and sets expectations accordingly. Rumors and misinformation often lead to frustrating and unsatisfying results. If you think your case is eligible for premium processing or have questions about the program, you should consult with competent legal counsel to obtain accurate information.