Immigration Law Advisory - Certain Employment-based Petitions Now Eligible for Expedited Processing

The United States Citizenship and Immigration Services (“USCIS”) recently announced that its expedited adjudication service, known as Premium Processing, will be extended to two types of I-140 petitions filed under the third-preference worker category (EB-3). This service will be available as of August 28, 2006.

What is an I-140 petition?
Form I-140 petitions are filed in employment-based immigration cases, so-called because they involve aliens who seek to immigrate permanently to the United States through sponsorship by their employer. 

What is Premium Processing?
The USCIS Premium Processing service has traditionally provided expedited treatment for certain employment-based petitions, including nonimmigrant H, L, and O visas that allow foreigners to work for a temporary period of time in the United States through employer sponsorship.  Specifically, USCIS guarantees 15 calendar-day processing to petitioners who choose to use this service and pay an additional $1000 fee. In the event that the USCIS fails to make a decision on the petition in the specified time frame, the fee is refunded and the case continues to receive expedited processing. Premium Processing may even be requested after the filing of a petition, as long as the request, along with the appropriate $1000 fee, is submitted to the USCIS before the underlying petition is approved.

This service is now being extended to allow faster processing of certain petitions filed under the third-preference worker category

What is the third-preference worker category (EB-3)?
Preference categories are used to classify workers in employment-based petitions and relatives in family-based petitions. The third-preference employment category is reserved for jobs for that require either professional workers with bachelor degrees, skilled workers with at least two years of education, training, or experience, and “other workers,” whose jobs require less than two years of education, training, or experience. A labor certification is always required to file an I-140 petition in the third-preference category. USCIS is extending Premium Processing of I-140 petitions filed only for professional workers and skilled workers, and not for “other workers.” Petitions filed in the first- and second-preference categories (EB-1 and EB-2) are not eligible for Premium Processing at this time. USCIS has indicated it may soon extend Premium Processing to these categories.

Who is affected by this development?
The Premium Processing service for I-140 petitions does not apply to individuals:

• with pending applications for permanent residence (green card).
• who are employed in positions that do not fall into the EB-3 preference category (positions that require either a bachelor degree or two years of education, training or experience, and no more or less.)

The new Premium Processing for I-140 petitions may, however, be a benefit to individuals who fall into the EB-3 preference category and:

• have an I-140 petition currently pending with the USCIS;
• will be the beneficiary of an I-140 petition in the future.

What are the benefits of Premium Processing for I-140 Petitions?
H-1B visa holders may benefit: Generally, H-1B visas are granted for up to six years. An H-1B employer may take advantage of one of two options to extend the H-1B visa status of its employees beyond this six-year limit.  The first option is available where a labor certification or I-140 petition was filed more than 365 days prior to the expiration of the six years. These H-1B visa extensions are issued in one-year increments. Annual H-1B visa extensions and obtaining a new visa stamp at a US Consulate abroad each year can be inconvenient and result in a substantial cost to the employer.  Moreover, the timing of the filing of the labor certification or I-140 petition must be carefully observed to ensure that more than 365 days have passed before the expiration of the six-year limit.

The second option allows for three-year extension of H-1B status in cases in which the I-140 petition has been approved and the case is subject to retrogression (nonavailability of visa numbers). Retrogression has affected all EB-3 cases quite dramatically; some workers are being forced to wait several years for a visa number to become available to allow them to file for and receive permanent residency (green card).  The option to extend H-1B status in three-year increments beyond the six-year limit will substantially reduce both cost and effort on the part of employers. Premium Processing of EB-3 I-140 petitions, therefore, offers a considerable benefit to employers of H-1B visa holders who wish to sponsor their employees in the EB-3 category.

Conclusion
Premium Processing of I-140 petitions offers some distinct advantages to employers and H-1B employees who qualify for permanent residence as professionals or skilled workers in the EB-3 category. 

If you have questions or would like guidance as to whether and how this service might benefit you, please contact Lynda S. Zengerle at (202) 429-8170, lzengerle@steptoe.com, or Joan S. Claxton, (202) 862-3891, jclaxton@steptoe.com.