By Sanwar Ali:
One bit of good news is that from 1 June 2020 there will be a phased re-introduction of premium processing for I-129 non-immigrant work visas and, where relevant, I-140 employment based green card applications. If you do not use premium processing instead of a petition taking 15 calendar days to consider, it can take a number of months for the United States Citizenship and Immigration Services (USCIS) to consider the petition.
USCIS Premium Processing suspended since 20 March 2020
Due to the coronavirus COVID-19 situation there has been a suspension of premium processing for all non-immigrant work visa and employment based immigrant visa petitions since 20 March 2020. USCIS is run by immigration hawk Ken Cuccinelli which is part of the Department of Homeland Security (DHS), run by another immigration hardliner Chad Wolf. Some people may have expected that excuses would have been made to further delay bringing back premium processing.
Ongoing rumours of suspension of some temporary non-immigrant visas such as H1B visa
There are still rumours of a suspension of some temporary work visa categories some time soon. Unfortunately, if there is a suspension, then premium processing will not make any difference for affected visa categories as you will not be able to apply anyway. It remains uncertain if and when this might happen.
Schedule for bringing back USCIS Premium Processing confusing
If you have a pending application and currently have been unable to use premium processing then as long as you are able to apply at the relevant date below you can add premium processing to an existing application. Please note that the situation is quite confusing. On certain dates below you can only add premium processing to applications that have been previously submitted. You cannot in all situations both submit a new petition and include premium processing at the same time! The timeline below is also dependent on the type of visa category. Even more confusing is that for say H1B visa cap exempt applicants, they can apply earlier than non-cap exempt applicants.
The relevant dates are as follows:
From June 1, 2020 premium processing for relevant I-140 immigrant petitions accepted:
You can again apply for premium processing under certain employment based immigrant visa categories including EB1 Aliens of Extraordinary Ability, Outstanding professors and researchers and certain other permanent residence categories. It should be noted that the premium processing part of an immigrant visa application is only part of the process. It can still take years in some cases to obtain an employment based immigrant visa.
From June 8, USCIS will accept premium processing upgrade requests for the following non-immigrant visas:
- For a limited number of H1B petitions that were filed before June 8 that are cap-exempt. This includes H1B cap-exempt employers, and H1B visa petitions for an extension of an existing H-1B visa, H1B change of employer, and H1B petition amendments for any type of employer.
- Only a limited number of employers are cap-exempt employers. Usually, they are Universities, research institutions, and non-profit organisation.
- All other Form I-129 petitions (non H-1B petitions) for nonimmigrant classifications eligible for premium processing filed before June 8 that are pending adjudication. Therefore for visa categories such as the L1 visa, O1 visa, H2B visa, E2 visa and other non-immigrant visa categories you can add premium processing if you had previously submitted an I129 petition. However, apart from relevant employment based Green Card petitions from 1 June 2020, it seems that you cannot apply for premium processing at the same time as filing non-immigrant visa petitions from 8 June 2020!
From June 15, USCIS plans on resuming premium processing for:
- USCIS will accept H-1B petitions requesting premium processing by filing an I-907 concurrently with their I-129 (or request for a petition filed on or after June 8) and are exempt from the cap because:
- The employer is cap-exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity or organization. For example this includes institutions of higher education, a nonprofit research organization or a governmental research organization); or
- The beneficiary is cap-exempt based on a Conrad/IGA waiver under INA section 214(l).
This will only benefit a limited number of applicant employers that are cap exempt. These applicants can submit their I129 petition and include premium processing at the same time as filing.
From June 22, USCIS plans on resuming premium processing for all other Form I-129 petitions:
This should mean that eventually by 22 June 2020, unless there are any other delays, it will be back to normal. You can apply for premium processing for all the usual petitions at the same time as filing the petition, or if you have submitted a previous petition without premium processing you can add this now. You should be able to do the following:
- All H1B petitions including those for fiscal year 2021 are eligible for premium processing. This will include those that are subject to the cap or are cap exempt.
- All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 non-immigrant status, for both premium processing upgrades and concurrently filed I-907s.
- All other Form I-129 petitions for non-immigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129. This means that you can file all non-immigrant visa petitions requesting premium processing at the same time as filing.
USCIS has also stated that the premium processing dates mentioned above are subject to change. If you had already filed Form I-129 or Form I-140 using the premium processing service before the March 20 suspension, and there has been no action and a refund you may submit a Form I-907 based on the above timeline.
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