By Attorneys Robert L. Reeves and Joseph I. Elias
The USCIS just announced that starting June 16, 2008, it will allow certain I-140 immigrant visa petitions to be accepted by its premium processing units. The expedite processing will allow an I-140 to be approved in 15 calendar days or less. The USCIS is limiting the I-140 premium processing to H-1B workers who are nearing the end of their sixth year in H-1B status. Expedited processing will be available to those whose sixth year of H-1B status will expire 60 days from filing the I-140 petition. They must also be able to extend H status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21).
AC21 is an immigration law passed by Congress with provisions allowing H-1B workers to extend their status beyond their six-year cap. AC21 provides two ways to extend an H-1B. The first allows for one-year extensions beyond the six years if certain conditions are met. The conditions are that either a labor certification, or a combination of labor certification and an I-140 have been pending for over 1 year at the time the extension is filed. In order to extend under this provision, employers must have at least filed a labor certification on or before the worker’s fifth year in H-1B status.
Section 104(c) under AC21 provides a second way to extend H-1B status beyond the sixth year. This provision only requires that the worker’s I-140 is approved and he is waiting for his priority date to become current. H-1B status can then be extended for an additional 3 years.
An example illustrates how the provisions work. Holly is in H-1B status. Her employer filed a PERM application for her after her fifth year of H-1B started. It was approved very quickly and the I-140 was also filed in Holly’s fifth year. The employer would like to extend Holly’s H-1B for a seventh year or more in order to avoid a disruption in services. No extension can be granted under the first provision of AC21 because the PERM and the I-140 were filed too late. But, if the I-140 is approved before Holly’s sixth year is reached, a three-year extension may be filed under AC21’s second provision. An I-140 approval is therefore a critical condition for many H-1B workers who need to extend their status beyond six years.
The return of premium processing for I-140s is welcome relief and news to many H-1B employers and their workers. The USCIS’s normal I-140 processing time is now approximately 1.5 years. H-1B workers in situations similar to Holly’s from the example, would have no way to extend their H-1B status given the normal processing times. They face having to depart the US for at least one year before they may start the H-1B process anew. This includes participating in the luck of the H-1B visa number lottery. Jobs would be lost. Employers would lose workers for at least a year. And, careers and projects would be sidetracked or derailed. The return to expedite processing will help eliminate this for most in this situation.
The USCIS’s recent action recognizes that it is in a position to avoid a disruption of the valuable contributions and services H-1B workers provide. It is providing a much needed mechanism to allow for extensions of H-1B status. This also helps those who already have I-140 petitions pending before the USCIS, but which were not filed in time to qualify for the one-year H-1B extensions. These petitions can be upgraded to expedite processing in order to obtain the I-140 approval needed to extend status under the second provision of AC21.
Six years of H-1B status goes by very quickly. Employers and H-1B workers who are fast approaching the fifth year should move quickly to file PERM labor certifications. Even if the PERM is not filed until after the fifth year, there is still a chance the H-1B can be extended. Filings should not be put off until the last minute because the USCIS may once again remove I-140s from the expedite processing queue. Everyone should also keep in mind that the Department of Labor’s processing times on PERM applications has slowed down from a few weeks to an average of six months. This means PERM applications must be filed as soon as possible in order to preserve a chance at extending H-1Bs beyond six years.
It was almost one year ago when the number of I-140s filed forced the USCIS to pull the plug on premium processing. This is a welcome start to the return of premium processing of I-140s. We hope that the door will soon open wider to include other categories of I-140 petitions.