By Attorneys Robert L. Reeves and Joseph I. Elias
On September 25, 2006 the USCIS began the option for expediting immigrant visa petitions for additional categories of immigrants. The expedited program is now available for EB-1 or outstanding professors and researchers; EB-2 or members of professions with advanced degrees or exceptional ability who are not seeking a National Interest Waiver; and the two previous employment-based categories known as the EB-3 Professional and the EB-3 Skilled Worker. EB-2 immigrants are typically those who work in occupations that require at least a master’s degree for entry into the field or a bachelor’s degree and five years of experience. 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 at this time.
Petitioners must pay an additional fee of $1,000 to the CIS for a decision 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 petitioner. So, who can benefit from this program? The inclusion of the EB-1 and EB-2 increase the group of applicants who can benefit. For many countries the EB-1 and EB-2 visa numbers are current which means permanent resident status may be issued as soon as the immigrant visa petition is approved. For example, an Economist or a Controller/Financial Manager (typical EB-2 positions) from the Philippines could obtain permanent resident status (if in the U.S.) or an immigrant visa (if overseas) once the immigrant visa petition was approved. Rather than wait the 6 months to 1 year for the CIS to approve the petition, an EB-2 applicant could receive expedited processing.
There remain many incorrect rumors and myths about the expedited processing, and we believe it is important to address these and set the record straight. For instance, multinational managers or executives are members of the EB-1 category. But they have been excluded from the premium processing program at this time.
Some other 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 will continue in the normal processing queue which can range from 6 months to 1.5 years. The CIS has indicated that in the future it may be able to accommodate these types of applications under the program. Also, premium processing does not expedite the 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 processing 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 also not available for cases where the beneficiary is being substituted in for the person listed on the labor certification. The final limitation is premium processing is not available 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 absolute. 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 immigration counsel to obtain accurate information.