Overview of Coming Changes to Premium Processing

On September 30, 2020, the Continuing Appropriations Act, 2021 and Other Extensions Act was signed into law, funding the federal government through December 11, 2020. Included in the bill is a provision that dramatically changes the premium processing service offered by the U.S. Citizenship and Immigration Services (USCIS).

Timing for Changes

Most of the key changes to the premium processing service – including the expansion of this service to many additional types of cases – have not yet gone into effect. Rather, the law calls for the USCIS to go through the regulatory process to set the required fees. Therefore, it may take several months or more before the changes become effective.

Premium Processing Service Expanded to Many Additional Types of Cases

Once the changes go into effect, premium processing will be available for all of the following:

• All employment-based nonimmigrant petitions
• All I-140 petitions, including for the EB1(c) category and for EB2 national interest waivers (NIWs), both of which have historically not had access to premium processing
• Form I-539 applications, which is used to apply for a change or extension of status for most dependents (e.g., H-4, L-2), along with F-1 students, B-1/B-2 visitors, etc.
• Form I-765, which is used to apply for employment authorization documents (EADs)

Guidelines on Fees and Processing Times

For the case types that already allow for the use of premium processing, the fee for this service will increase to $2,500, with the exception of petitions filed for H2B or R-1 workers. For those two nonimmigrant categories, the premium processing fee will be set at $1,500. The USCIS will not need to go through the complete regulatory process to implement these fee increases, so they may be implemented more quickly than the other changes.

For the case types that have not previously had access to premium processing, such as I-539 and I-765 applications, the appropriations act does not set the exact fee or processing times. But, it does set limits. The exact costs and time limits will be determined by the USCIS through the formal rulemaking process, pursuant to the following limitations:

• The premium processing fee for I-140 petitions filed for EB1(c) and EB2 NIW cases will be no higher than $2,500, and the processing timeframe will not exceed 45 days.
• The premium processing fee for all I-765 applications and most I-539 applications will be no higher than $1,750, and the processing timeframe will not exceed 30 days.
  • The statute does not specifically apply this limit to certain types of I-539 applications, such as those for B-1/B-2 applicants. However, the assumption is that, in the regulation, the USCIS will set the same fee and timeframe for all I-539 applications.

Conclusion

While the increased fees may not be ideal, the fact that premium processing service finally will be made available for so many additional types of applications and petitions is welcome news. Not only will this help to provide funding to the USCIS, it will also help foreign nationals to avoid status issues and gaps in employment authorization in many situations.

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