I-140 Premium Processing Expansion as of March 2, 2009
Posted Mar 20, 2009
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The U.S. Citizenship and Immigration Services (USCIS) recently expanded the reinstatement of premium processing for I-140 petitions. This is a subtle change, still limiting I-140 premium processing to a small group of cases for which the I-140 approval is needed in order to obtain eligibility for additional H1B time. The change was effective March 2, 2009. The expansion includes individuals who have already reached the end of their six years in H1B status, who would be eligible for additional time upon the approval of the I-140 petition. This situation is explained here for MurthyDotCom and MurthyBulletin readers. Examples of options for individuals in H1B status are also provided.
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Background of Premium Processing for I-140 Petitions
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The premium processing service for I-140 petitions was suspended July 2, 2007 (during the July 2007 VisaGate fiasco), and reinstated on a limited basis on June 16, 2008. As regular readers may recall from our June 27, 2008 NewsBrief, Requirements for Premium Processing of I-140 Petitions, premium processing has been restricted to a small group of I-140 petitions. Before to the most recent change, an I-140 beneficiary had to be in H1B status and within sixty days or less of expiration of the sixth year if H1B status, and otherwise ineligible to extend H1B status.
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Latest Expansion of I-140 Premium Processing since March 2009
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Under the new procedures, effective since March 2, 2009, the USCIS requirements for I-140 premium processing of cases will apply in the following circumstances.

• The individual must be a beneficiary of an I-140 petition, in a category for which premium processing is permitted. The permitted categories are detailed in our September 22, 2006, NewFlash, Expansion of I-140 Premium Processing from Sep 25, 2006.

• The individual must have completed the sixth year of H1B status, or be reaching the end of the sixth year in H1B status within sixty days.

• The individual is ineligible for further H1B extensions under the "365-day rule" (allowing one-year extensions for those with labor certifications or I-140 filings that were made 365 days prior).

The individual will be eligible for further H1B time upon approval of the I-140 petition (based upon not having an available visa number / priority date).
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Premium Processing Expansion When H1B Limit Reached
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This expansion now includes I-140 petitions for beneficiaries who have already reached the end of their H1B six years and are no longer holding H1B status. This could include individuals who had to depart the United States, as well as those who are in the U.S. in statuses other than H1B. This is relevant for those with permanent residence cases that were initiated during the sixth year of their H1B status, as discussed in our March 6, 2009 article, Filing Labor Certifications during Sixth Year of H1B.
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Case Example
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An H1B beneficiary, Venkat, for this example, will reach the sixth year of his H1B status on May 17, 2009. His labor certification was filed on July 1, 2008. Thus, his labor certification will not be 365 days old before his H1B expires. Under the premium processing procedures, if his labor certification is approved before the 365-day point, he may be able to use premium processing.
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One possibility would be for the labor certification to be approved on May 1, 2009. In that event, since it is fewer than sixty days before the expiration of the H1B six-year period, premium processing could be used to expedite the I-140. If approved in time, Venkat's employer could extend his H1B for three more years, as the priority date is not current.
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Another possibility would be for Venkat to leave the United States on May 17, 2009. If his labor certification was approved the next day, on May 18, 2009, however, premium processing could be requested for the I-140 petition under the new procedures. (Under the earlier rule, pre-March 2009, the individual would not be entitled to request and obtain the I-140 under premium processing). Once it was approved, Venkat's employer could file for a three-year H1B petition, with a consular processing option (since Venkat is outside the U.S.). Venkat would have to apply and obtain the H1B visa at the U.S. consulate and could return then to the U.S. in H1B status.
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A third option would be for Venkat to file to change to H-4 status, if he is married to a spouse in H1B status. Thereafter, his employer would file to change his status back to H1B once he was eligible for additional H1B time, potentially using I-140 premium processing if he meets the requirements.
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Conclusion
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This expanded reinstatement of I-140 premium processing is a small but significant change. It should help some who are close to the end of their H1B six-year periods, or who have already reached that point. It is hoped that the USCIS will be able to continue to expand the availability of I-140 premium processing. It is useful in many situations. We at the Murthy Law Firm are pleased that the USCIS has expanded the premium processing option slightly to help employers and employees. We will continue to update readers with the latest information on premium processing for I-140 petitions.