USCIS Begins to Reinstate Premium Processing

USCIS has announced that starting June 1, 2020 they are beginning a gradual reinstatement of I-907 premium processing services (see our March 20th alert on the sudden premium processing suspension). Initially, eligible I-140 petitions will be able to file or upgrade to premium processing, followed by gradual H-1B premium processing reinstatement after June 8th. H-1B cap cases are last and can file premium processing only after June 22nd.

June 1, 2020

Starting June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service for all eligible Form I-140 petitions. This includes new I-140 petitions and premium processing upgrades on pending I-140 petitions. Note that not all I-140 petitions are eligible for premium processing service; for example, I-140 under National Interest Waiver or I-140 for EB-1 International Managers are not eligible for premium processing.

June 8, 2020

A week later, starting June 8, USCIS will accept premium processing requests for certain premium processing upgrades:

• Cap-exempt H-1B premium upgrades. H-1B petitions filed before June 8 that are pending adjudication and are cap-exempt (for example, petitions filed by petitioners that are cap-exempt and petitions filed for beneficiaries previously counted toward the numerical allocations).  This includes H-1B extensions, amendments, transfers.
• Other I-129 petition upgrades. 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. For example, this would include TN premium processing upgrades.

June 15, 2020

On June 15, 2020 USCIS plans to resume premium processing for new H-1B cap-exempt filings but only where the cap-exemption is either based on cap-exempt employer or placement (such as university, non-profit research, etc.) or for certain medical petitions:

• 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 (such as an institution 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).

June 22, 2020

USCIS intends to resume premium processing for all other I-129s, including:

• All H-1B cap-subject petitions (including those for fiscal year 2021), including change of status from F-1 nonimmigrant status, for both premium processing upgrades and concurrently filed I-907s. 
• All other Form I-129 petitions for nonimmigrant classifications eligible for premium processing and requesting premium processing by filing an I-907 concurrently with their I-129.

When Can I Request Premium Processing for My Case?

The premium processing reinstatement schedule is somewhat confusing, so we provide some more specific common scenarios and when premium processing will be available for them.

I-140 Petition. Premium processing is available as of June 1 – this is valid for new premium processing I-140 petitions and for premium processing upgrades to pending I-140s.

Pending H-1B Transfer/Extension/Amendment. For H-1Bs filed prior to June 8, premium processing upgrades will be available starting June 8. This does not apply to cap-exempt petitioners (universities, etc.) This also does not apply to cap-subject petitions.

New H-1B Transfer/Extension/Amendment. For new H-1B petitions, filing with a request for premium processing will be available after June 22.

H-1B Cap Petitions. Premium processing upgrades (or new filings, although this is getting very late given the June 30 filing deadline) is available after June 22.

H-1B Filed by Cap-Exempt Employer. New H-1Bs or upgrades on existing pending petitions after June 15. This applies to cap-exempt petitioners such as universities or non-profit research organizations.

All Other I-129s Such as TN. All other I-129 petitions which are eligible for premium processing can request upgrade or new filings with premium processing after June 22.

Caution About Volume of Premium Processing Requests and Likelihood of Increase in USCIS RFE Requests

Undoubtedly, there will be a significant increase in premium processing filings and upgrade requests immediately after the services are reinstated.

Based on our prior years’ experience with reinstating premium processing, there is always a huge spike in premium processing requests right after reinstatement which often results in USCIS issuing a lot more requests for evidence (RFE). We recognize that in many cases the premium processing service is extremely important and must be done as soon as possible; however, if it is possible to wait for a little bit of time to request premium processing, for example, between one and four weeks, we believe it may help decrease the chances of an RFE on a case.

Conclusion

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