USCIS suspends Premium Processing service for all I-129 and I-140 petitions

BY Jason Gerrol

On March 20, 2020, U.S. Citizenship and Immigration Services (USCIS) temporarily suspended Premium Processing service for all Form I-129 and Form I-140 petitions due to COVID-19. USCIS has not announced when they anticipate resuming normal operations and again offering Premium Processing service.

What is Premium Processing service?

Employers may request Premium Processing service to expedite the USCIS adjudication of certain employment-based petitions. Specifically, in exchange for an additional filing fee of $1,440, USCIS will adjudicate a Premium Processing eligible petition within 15 calendar days of the Premium Processing request receipt date. Without Premium Processing, the USCIS processing times for certain petitions may be several months.

Why is the Premium Processing suspension significant?

Form I-140, or Immigrant Visa Petition, is filed by an employer on behalf of a foreign national worker as part of the lawful permanent residency (or "green card") sponsorship process. The suspension of Premium Processing service for all Form I-140 petitions may have little, if any, impact on many foreign national workers, but could have significant impacts on foreign national workers who (1) need an I-140 approval in order to continue to extend their H-1B status beyond the 6-year maximum pursuant to Section 104(c) of The American Competitiveness in the 21st Century Act (AC21); or (2) are otherwise eligible to obtain their green cards but for the I-140 approval.

Form I-129, or Petition for Nonimmigrant Worker, is required for classification in nearly all non-immigrant visa categories, including H-1B, L-1, O-1, etc. The suspension of Premium Processing will put most of these hiring processes on hold until these non-immigrant petitions are approved.

Importantly, while the suspension will apply to extension petitions filed on Form I-129 on behalf of current foreign national workers, a timely filed extension petition to continue working for the same employer entitles the worker, in most cases, to an automatic 240-day extension of work authorization while the petition remains pending.

The suspension will be particularly impactful on H-1B Change of Employer petitions.

The Premium Processing suspension will apply to H-1B Change of Employer petitions. As a general rule, a foreign national already working for a cap-subject employer in valid H-1B status may begin working for a new cap-subject employer upon the filing of the H-1B Change of Employer petition with USCIS. In other words, an approval of that petition is not required for the employee to begin working for a new employer, so long as USCIS ultimately approves the H-1B petition.

However, should USCIS deny the Change of Employer petition after the employee has changed employers, the employee may be left without valid legal status and, in some cases, may begin accruing unlawful presence (i.e., be deemed "not lawfully present" by USCIS). For this reason, many employers routinely request Premium Processing service to ensure the H-1B Change of Employer petition is approved before the employee commences employment, thereby greatly reducing or eliminating any risks during the change of employer process.

The suspension of Premium Processing will require new employees to either take those risks or delay starting employment with the new employer for several months.

author img


Jason Gerrol

Of Counsel

Posts By this author