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Bloggings on Updates in Immigration Law

by Carl Shusterman

Editor's note: Here are the latest entries from Carl Shusterman's blog.

June 23, 2009

Premium Processing of I-140s - What It Means to You

The USCIS has announced that most employment-based (EB) immigrant petitions (I-140s) will be eligible for premium processing starting June 29, 2009.  We link to the USCIS Update from our "Premium Processing" page at

Premium processing will be available for EB-1 Persons of Extraordinary Ability and Outstanding Professors and Researchers; EB-2 petitions which are not for National Interest Waivers; and EB-3 petitions for Professionals, Skilled and Unskilled Workers.

The only EB I-140s which are specifically excluded from the program are (1) visa petitions for Multinational Executives and Managers under the EB-1 category and (2) National Interest Waivers under the EB-2 category.

Premium processing is a program developed by the INS in 2001 which permits persons to request speedier processing of certain types of petitions and applications for immigration benefits in exchange for paying the agency an additional $1,000 in filing fees.  If the agency fails to issue either an approval, a request for evidence (RFE), a notice of intent to deny or to open an investigation for fraud or misrepresentation within 15 calendar days of receiving the application, premium processing will continue although the USCIS will refund the $1,000 fee.

Given that many of the EB categories are either unavailable or significantly backlogged, why should employers or employees pay for premium processing?

We can think of four reasons for doing so.

(1) If an I-485 adjustment of status application has been pending for 180 days, the law permits an employee to change employers as long as the new job is in the same or a similar occupation. However, it is very unwise to change employers before the USCIS has approved the I-140 visa petition.  If the employee changes employers before the I-140 is approved and the agency issues a request for evidence, what incentive does the former employer have to answer the RFE?  If there is no response to the RFE, it is likely that the I-140 will be denied, and so will the I-485. 

(2) Even if an I-485 has not been filed, the approval of an I-140 locks-in the priority date as of the date that the application for labor certification or PERM is received by the USCIS or the date that the I-140 is received if no labor certification or PERM is required.

If an employee with a temporary work visa changes employers, it is wise to wait until the I-140 is approved since this locks-in the priority date.  Of course, the original priority date can only be utilized if the employee obtains the approval of a new I-140 (and a labor certification or PERM, if required) from the new employer.  In both of the above examples, premium processing of the I-140 is not beneficial to the initial employer. It is, however, advantageous to both the employee and to his subsequent employer.  (3) Whether or not an I-485 has been filed, the law provides that if a person in H-1B status is the beneficiary of an I-140 petition in either the EB-1, EB-2 or the EB-3 categories, and is eligible for permanent residence but for the per-country limitations, he or she may be granted H-1B extensions beyond the sixth year in three-year increments. This is a benefit for many employers and employees alike since the mere filing of an application for labor certification, PERM or an I-140 more than one year ago only entitles the worker to apply for H-1B extensions in one-year increments.

(4) Where an I-485 is pending, USCIS regulations provide that the applicant may be eligible to extend his or her Employment Authorization Document (EAD) for two years, but only if an I-140 has been approved for the applicant.

In short, the reinstatement of premium processing for most I-140s is a distinct benefit for employees and employers alike.