Congress Passes Bill Expanding Premium Processing to EADs, I-539 Applications, and Additional Employment Based Categories

Happy Monday! Welcome back to Visalawyerblog. We kick off the start of a brand new week with very exciting news.

We are happy to report that on October 1, 2020, Congress passed H.R. 8337, an appropriations bill that will expand the availability of premium processing service provided by the United States Citizenship and Immigration Services (USCIS) to a larger pool of applicants for immigration benefits.

The legislation calls for expansion of premium processing to most employment-based immigration applications and potentially all USCIS benefits. This move could prove enormously beneficial especially during the Coronavirus pandemic to help move cases along more quickly than ever before. Applicants who request an employment authorization document (EAD) for example can seek premium processing service along with their applications, allowing for EADs to be issued within 15 calendar days.

During this pandemic, the processing of EAD applications has slowed significantly with most taking at least 7 months or longer to be issued. This new legislation will dramatically improve processing times for those that are willing to pay for premium processing service.

Before H.R. 8337, USCIS allowed certain employment-based petitioners to request premium processing service for E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket L-1), O-1, O-2, P-1, P-2, P-3, Q-1, R-1, TN-1 and TN-2 applications for a fee of $1,440 with guaranteed processing of applications within 15 calendar days. For immigrant petitions, premium processing was available, with certain exceptions, for the employment-based first, second and third preferences (EB-1, EB-2 and EB-3).

What types of petitions will benefit from the expansion of premium processing service?

The new legislation will now allow premium processing service for:

(A) employment-based nonimmigrant petitions and associated applications for dependents of the beneficiaries of such petitions;

(B) employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), or (3) of section 203(b); [the first three employment-based preferences]

(D) applications for employment authorization; and

(E) any other immigration benefit type that the Secretary deems appropriate for premium processing.

What will be the cost of premium processing for these new case types?

For immigration benefit types eligible for premium processing service on or before August 1, 2020, the fee will be $2,500, except for the H-2B or R categories, which will have a $1,500 fee. The legislation does not mention a change in the 15-calendar-day processing time for categories available for premium processing prior to the passage of H.R. 8337.

For immigration benefit types that did not previously have premium processing, the legislation states the fee will be established by regulation using a detailed methodology.

Fees and Processing Timeframes

The legislation outlines the maximum costs and timeframes for processing according to benefit types that will now be eligible for premium processing.

– EB-1, EB-2 NIW: For multinational executives and managers under EB-1 and members of professions with advanced degrees or exceptional ability seeking a National Interest Waiver under EB-2, “the fee is set at an amount not greater than $2,500 and the required processing timeframe is not greater than 45 days.”

– F, J, M Categories: For an individual changing status to the F, J or M categories, “the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days.”

– Change of Status Dependents E, H, L, O, P, R: For foreign nationals seeking to change status to be classified as a dependent in E, H, L, O, P or R categories, or to extend such status, “the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days.”

– EADs: For applications for employment authorization, “the fee is set at an amount not greater than $1,500 and the required processing timeframe is not greater than 30 days.”

The legislation notes, “The required processing timeframe for each of the applications and petitions . . . shall not commence until the date that all prerequisites for adjudication are received by the Secretary of Homeland Security.” USCIS is admonished not to allow an “increase in processing times for immigration benefit requests not designated for premium processing.”

What’s next?

The legislation requires the Secretary of Homeland Security to report to Congress within 180 days on a 5-year plan to: “1) Establish electronic filing procedures for all applications and petitions for immigration benefits. (2) Accept electronic payment of fees at all filing locations. (3) Issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically and (4) Improve processing times for all immigration and naturalization benefit requests.”

Within the coming weeks, we expect USCIS to update its premium processing webpage and provide further guidance regarding the availability of services for the classifications described above.

We believe that the expansion of premium processing service to additional benefit requests is imperative given the long waiting periods for many types of applications. The new move affords a growing number of employers and individuals the opportunity to pay more for faster service, while at the same time injecting much needed capital into the agency.

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