Originally Published in Forbes
Stuart Anderson - October 1, 2020
In a move that could provide employers and individuals with more opportunities to pay U.S. Citizenship and Immigration Services (USCIS) for faster service, Congress will allow the agency to raise the fee for premium processing and expand it to cover new immigration categories. The measure is part of H.R. 8337, an appropriations bill to fund the federal government that passed the House and Senate at the end of September 2020 and was signed into law by the president.
“The legislation calls for the expansion of premium processing to most employment-based immigration applications and potentially all USCIS benefits,” said Greg Siskind of Siskind Susser in an interview. “This could be enormously beneficial to many. One benefit that could look dramatically different is the employment authorization document (EAD). USCIS used to have a 90-day limit on processing that application filed by hundreds of thousands of people every year. These applications have dramatically slowed to six months or longer in some service centers and there have been mass lawsuits filed challenging how long USCIS is taking to process. This will be enormously helpful for a lot of these people.”
Before the New Legislation: Before H.R. 8337, USCIS guaranteed processing within 15 calendar days and the cost of premium processing was $1,440 for petitions for temporary visas that use Form I-129, which includes 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. 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), according to USCIS.
Application Types Now Eligible for Premium Processing: The new legislation reads: “(2) IMMIGRATION BENEFIT TYPES.—Subject to reasonable conditions or limitations, the Secretary shall establish a premium fee under paragraph (1) in connection with— “(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]
“(C) applications to change or extend nonimmigrant status;
“(D) applications for employment authorization; and
“(E) any other immigration benefit type that the Secretary deems appropriate for premium processing.” (Emphasis added.)
The New Cost of Premium Processing: For immigration benefit types eligible for premium processing 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.
The legislation details the maximum costs and timeframes for processing under benefit types that will now be eligible for premium processing.
- 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.”
- 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.”
- 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.”
- 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.”
Reporting Requirements: 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. (4) Improve processing times for all immigration and naturalization benefit requests.”
Greater Flexibility to Use Fees: “In addition to allowing USCIS to raise fees, the legislation also gives the agency more flexibility in how it uses the money,” said Siskind. Under H.R. 8337, premium processing fees can be used to: “(A) provide the services described in paragraph (5) to premium processing requestors; (B) make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors; (C) respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests; and (D) otherwise offset the cost of providing adjudication and naturalization services.”
If U.S. Citizenship and Immigration Services processed applications in a reasonable timeframe, premium processing would be unnecessary. Given the reality of USCIS adjudications, providing employers and individuals the opportunity to pay more for faster service will be seen by many as a positive development.