Premium Processing Service - H1b Premium Processing Time

Premium Processing Service refers to an optional premium service offered by the United States Citizenship and Immigration Services to employers filing Form I-129 (Petition for a Nonimmigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). To avail of the service, the employer needs to file Form I-907 and include a fee that (as of 2015) is $1225.

Service offered

Procedure and time frame

According to the United States Citizenship and Immigration Services website, USCIS guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing. The time begins from the receipt of Form I-907 and the associated fee. Form I-907 may be filed along with Form I-129 or I-140, or electronically as a standalone form for a previously filed Form I-129 or I-140.

What it means to process an application

When the USCIS says it will process the application within 15 days, this does not mean that a final decision about the application will be reached within that timeframe. Rather, the USCIS promises one of the following four responses:

1. Approval Notice
2. Request For Evidence (RFE): The USCIS asks the applicant to submit additional evidence or information.
3. Notice of Intent to Deny (NOID)
4. Commencing an investigation for fraud or misrepresentation.

If the USCIS issues a RFE or NOID, the applicant must file a timely response. The USCIS has an additional 15 days to process the application after receiving the applicant's response. Form I-907 need not be filed again, and the premium processing fee need not be paid again.

Classifications for which the Premium Processing Service is available

At present, the Premium Processing Service is available for all visa classes for which Forms I-129 and I-140 can be used, with the following exceptions:

• For Form I-129: The H-2B visa classification was temporarily suspended on March 6, 2015. Also, the Premium Processing Service is available to R-1 visa applicants only if the petitioner has passed an on-site inspection.
• For Form I-140: The EB-1 (Multinational Manager or Executive category) and EB-2 (National Interest Waiver) categories. The Premium Processing Service is not yet available for these categories.

Relation with cap-subject visas

Applying for the Premium Processing Service does not provide any preferential treatment in the lottery for cap-subject visas such as the H-1B visa, H-2B visa, or H-3 visa.

Discretionary expedite requests

USCIS' previous system of allowing discretionary expedite requests is no longer available for any task for which the Premium Processing Service is available, with one exception: non-profits (as designated by the Internal Revenue Service) may still make discretionary expedite requests instead of using the Premium Processing Service.

History

Form category and fee changes

The Premium Processing Service began as a service with a $1000 fee for Form I-129 petition categories in 2001. It was activated for the majority of categories on June 1, and for the rest on July 30. The fee was introduced and collected by the Immigration and Naturalization Service (INS), the predecessor to the USCIS, and its introduction was a purely administrative decision by the INS rather than the result of any immigration legislation.

On May 23, 2006, the USCIS announced that it would roll out the Premium Processing Service for some Form I-140 visa categories. The rollout continued through 2006. Premium Processing was reinstated for Form I-140 petitions in 2009.

In November 2010, the Premium Processing Service fee was hiked from $1000 to $1225 as part of a general change to the fee schedule for USCIS forms. The change would become effective in 2011.

Pre-announced delays for processing cap-subject petitions

Starting March 2013, USCIS has generally announced a delayed start date from which to start the 15-day counter for premium processing for cap-subject petitions for the H-1B visa. This has been done in anticipation of a huge load of applications and the need to prioritize data collection about all applications. In other words, applicants who requested the Premium Processing Service should expect a response within 15 days of the delayed start date rather than within 15 days of the USCIS receiving the application.

Other suspensions of the Premium Processing Service

In addition to the annual suspension of the Premium Processing Service for cap-subject petitions as described above, USCIS has also temporarily suspended Premium Processing Service for other types of applications in order to preserve resources for other kinds of increased caseloads. For instance, in anticipation of increased caseloads due to the Employment Authorization for Certain H-4 Spouses final rule, USCIS suspended Premium Processing Service for H-1B extension of stay petitions in cap-subject categories for the period from May 26 to July 27, 2015. Those who had already applied for the Premium Processing Service before May 26 would still receive it.

Reception

Reasons companies use the Premium Processing Service

Since applying for Premium Processing does not provide any preferential treatment to applicants, commentators have claimed that the main reason companies are willing to pay these fees is because the faster turnarounds allow them and their prospective employees to plan next steps more effectively. This is particularly important in cases of requests for evidence or notices of intent to deny, because of the further iterations needed in order to get approved.

Criticism of the Premium Processing Service

In June 2001, shortly after the introduction of the Premium Processing Service by the Immigration and Naturalization Service (the predecessor to USCIS), Gary Endelman wrote an article in Immigration Daily critical of the Premium Processing Service. He argued that the very fact that people were willing to pay the fee for 15-day processing times highlighted severe inefficiencies and unfunded mandates on the INS, which should not take much longer to process applications in any case. He suggested that rather than allowing the INS to treat these fees as cash cows, the United States legislature should identify clearer, more limited mandates for the agency along with a plan to fund them. This concern was partly resolved with the restructuring of the INS into United States Citizenship and Immigration Services (that is funded almost entirely by user fees) and U.S. Immigration and Customs Enforcement, which handles immigration enforcement and is directly funded by Congress.

Proposals to expand the Premium Processing Service to other visa categories

On his personal blog The Asylumist, lawyer Jason Dzubow has mooted the idea of extending premium processing to asylum applications, so that the influx of funds could help the USCIS spend more resources to clear a huge backlog of cases.

There have also been repeated requests to the USCIS to enable premium processing for Form I-526 applications that are a first step to obtaining an EB-5 visa (investor visa). The USCIS itself came up with proposals in August 2011 that would allow Premium Processing Service requests for EB-5 investor applications (made on Form I-526) for projects that were fully developed and ready to go. However, as of April 2015, the Premium Processing Service is still restricted only to Form I-129 and Form I-140 petitions.