Requirements for Premium Processing of I-140 Petitions
Posted Jun 27, 2008
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The USCIS announced premium processing would resume as an option for a very limited group of I-140 petitions as of June 16, 2008. The official notice of the renewed availability of this elective expedited processing was made public on June 11, 2008 and published in our NewsFlash, I-140 Premium Processing for Limited Cases to Start June 16, 2008, still available on MurthyDotCom at the time of this writing. Expedited premium processing is only available for I-140 petitions filed on behalf of foreign nationals who otherwise would not be eligible for H1B extensions. We at the Murthy Law Firm continue to receive questions about eligibility and, therefore, offer this clarification to benefit our readers.
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Individual Must be in H1B Status
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The foreign national beneficiary of the I-140 petition must be in H1B status in order to be potentially eligible for premium processing. S/he also must be in the sixth year of H1B status and must be reaching the end of the six years within 60 days.
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Available Only if I-140 Approval Needed to Extend H1B Status
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If one meets the requirements described above, s/he must be eligible for an H1B extension beyond the six-year limit if, and only if, the I-140 is approved. Thus, the individual cannot have a separate basis for the H1B extension under the provisions that permit a one-year extension if the labor certification or I-140 petition was filed 365 or more days prior to the expiration of the H1B six-year period.
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Priority Date Must Not be Current
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Additionally, one who is requesting I-140 premium processing must demonstrate that there are not sufficient employment-based immigrant visa numbers available, based upon the priority date of the particular case. This means that the individual's priority date cannot be current in order to file the I-140 premium processing, since, if the priority date is current, there would be no eligibility for the H1B three year extension. Additionally, a person with a current priority date presumably would be able to file the I-140 petition with the I-485 adjustment-of-status application and obtain employment through the EAD.
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USCIS Restricts Size of Group Due to Resource Considerations
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Cases that do not meet the requirements explained above cannot use I-140 premium processing as of this writing. The group that is eligible is intentionally very limited, as the USCIS can only process a small number of I-140s on an expedited basis. Thus, this option is only available to those who are at the end of their allowed H1B time, and who will be eligible for H1B extensions only if the I-140s are approved.
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Premium processing cannot be requested for persons who, for example, are eligible for extensions of their H1B status in one-year increments, but would be able to get three-year extensions if only the I-140 petitions were approved. Neither can it be requested for those who have H1B time available, but would be eligible for certain other immigration advantages if their I-140s were to be approved.
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Conclusion
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It is hoped that, as the USCIS works through the numerous pending I-140 petitions, premium processing will resume on a more widespread basis. We will, of course, share any such changes to ensure you, our valued clients and our loyal MurthyDotCom and MurthyBulletin readers, remain informed and able to make the best decision for your own situations.
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