On March 30, 2022, U.S. Citizenship and Immigration Services (USCIS) published a final rule entitled, Implementation of the Emergency Stopgap USCIS Stabilization Act. In this final rule, USCIS codifies multiple changes to the premium processing benefit and clarifies when USCIS is to implement premium processing updates. USCIS has recently indicated informally that it anticipates the initial implementation of expanded premium processing will be “premium processing upgrades” for certain pending petitions on or about June 1, 2022, and has indicated that it will announce in the future when it will begin accepting premium processing requests for initial filings. Current Premium Processing Options as of April 2022 

  • Form I-140 (EB-1 Alien of Extraordinary ability (EB-1A), EB-1 Outstanding professors and researchers (EB-1B), EB-2, Members of profession with advanced degrees or exceptional ability not seeking NIW, EB-3 Skilled Workers, EB-3 Professionals, EB-3  Workers other than skilled workers and professionals). Fee: $2,500. Timeframe: 15 days
  • Form I-129 (E-1, E-2, E-3, H-1B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, Q-1, TN-1, TN- 2). Fee: $2,500. Timeframe: 15 days
  • Form I-129 (R-1 and H-2B). Fee: $1,500. Timeframe: 15 days

 Proposed Additions to the Premium Processing Under the final rule, a 45-day premium processing timeframe will become available for those requesting EB-1 immigrant classification as a multinational executive or manager (hereinafter “EB-1C”) as well as those requesting EB-2 immigrant classification as a member of a profession with advanced degrees or exceptional ability seeking a National Interest Waiver (hereinafter “EB- 2 NIW”). A 30-day premium processing timeframe will also become available to certain Forms I- 539 

  • Form I-140 (for EB-1 – Multinational Executive or Manager (EB-1C) and EB-2 – Members of Professions with Advanced Degrees or Exceptional Ability Seeking a National Interest Waiver (EB-2 NIW): Fee: $2,500. Timeframe: 45 days
  • Form I-539 (Change of Status Request to: F-1, F-2, J-1, J-2, M-1, or M-2;  and Change of Status Request to: F-1, F-2, J-1, J-2, M-1, or M-2; and Change of Status to or Extension of Stay in: E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2: ): Fee: $1,750. Timeframe: 30 days
  • Form I-765: Request for Employment Authorization: Fee: $1,500. Timeframe: 30 days

While this final rule indicates that USCIS intends on expanding premium processing for the form types listed above, practitioners should note that DHS anticipates a phased implementation approach. DHS has indicated that it hopes to expand premium processing to the additional Form I-140 visa classifications listed above in FY 2022. With respect to the Form I-539, USCIS anticipates accepting premium processing requests from F–1, F–2, J–1, J–2, M–1 and M–2 applicants in FY 2022 and from E–1, E–2, E–3, L–2, H–4, O–3, P–4 and R–2 applicants in FY 2025. Thus, DHS has indicated it will prioritize premium processing for students applying for Optional Practical Training (OPT) and Exchange Visitors beginning in FY 2022, while others who require an Employment Authorization Document may have to wait until FY 2025 so that USCIS has sufficient time to gather revenue to cover potential costs without adversely affecting the processing time for other benefits. 3          Clarification on RFE and NOIDs Stopping the Timeframe and Resetting the Clock The final rule clarifies that issuance of a Request for Further Evidence (RFE) or Notice of Intent to Deny (NOID) will stop the premium processing timeframe. Upon receipt of the requested evidence, the timeframe will start over. USICS will refund the premium processing fee, but will continue processing the case, if it does not adjudicate the petition within the applicable timeframe. If the USCIS opens a fraud or misrepresentation investigation on a case, it will not refund the premium processing fee and will not adjudicate petition within the premium processing time frame. Key Factors Affecting the Expansion of Premium Processing While the final rule is set to become effective on May 31, 2022, it is important to note that the designation of a benefit request for premium processing (as well as establishing the corresponding fee and processing timeframes), does not in itself permit a request for premium processing to be filed. Instead, USCIS will communicate (1) which immigrant benefit requests are eligible for premium processing, (2) the date the eligibility becomes available and the date it ends, and (3) any conditions that may apply. Thus, even after the final rule becomes effective, USCIS will still need to announce when practitioners will be able to file these requests on their clients’ behalf.  Furthermore, USCIS retains discretion to set conditions for premium processing eligibility. Finally, USCIS has indicated that it will initiate the premium processing expansion described above on or about June 1. 2022, for pending petitions and that it will later expand it to new initial filings.