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Final Rule to Expand USCIS Premium Processing Program in Phases

Final Rule to Expand USCIS Premium Processing Program in Phases

Premium processing is the name given to an optional program that lets eligible petitioners or applicants request faster processing times with the promise of more guarantees for eligible petitions and applications. The fees for Premium processing are added to those for the regular petition filing or application fees for the request of the underlying benefits.

On May 31, 2022, this rule came into effect. However, the new premium processing categories the rule has added will only be available when the USCIS completes the requisite system development and their availability is explicitly announced.

Availability of Premium Processing

Premium processing remains available for existing categories eligible for premium processing even now. This rule designates new premium processing eligibility for specific immigrant petitions, employment applications, an extension of stay, and changes of status.

However, eligibility to request premium processing for all the categories added newly depends on the revision of systems by the USCIS in order to have the new categories accommodated.

According to the effective date language of the final rule, USCIS will announce the availability of premium processing for immigration benefit requests designated newly according to the regulations of DHS premium processing. These will be available as mentioned during that time.

For such new categories, until the USCIS announces the availability, Premium processing will not be available. It can be assistive to think about the availability of premium processing according to the benefit requested, instead of just the USCIS form number, due to some petitions and applications being used for many purposes.

Some of these are not designated for premium processing eligibility. Benefit requests will not be eligible for premium processing if these are not there in the final rule.

USCIS Final Rule and Premium Processing Expansion

A final rule was published by the U.S. Citizenship and Immigration Services (USCIS) on March 30, 2022, which was – The implementation of the Emergency Stopgap USCIS Stabilization Act. It is important to note that the new rule is expanding the “Premium Processing” requesting availability for specific USCIS applications, which include:

Form I-765 Application for Employment Authorization includes F-1 STEM OPT Extension and F-1 Optional Practical Training. The Application Processing Timeframes is 30 business days, and US$1,500 is the fee. Form I-539 Application for Change of Nonimmigrant Status includes applications to J-1 Exchange Visitor or F student visa status from specific statuses.

Thirty business days are needed for the processing of the application, and the fee is US$1,750. Form I-129 and Form I-140, for O and H-1B petitions and most other petitions based on employment status. 15 business days are needed for the processing of the application, and US$2,500 is the processing fee – the same amount as for the current Premium Processing for such categories.

Although May 31, 2022, is the rule’s effective date, it will be impossible to file Premium Processing requests for the new types of application forms until new premium processing request form versions and the USCIS and processing timelines issue instructions are confirmed by the same.

 There are indications from the USCIS that the Fiscal Year 2022 will have the planned effective date of the rule, and the earliest date might not be until the Fall of the year. The ISO will surely notify students, and the ISO website will be updated after Premium Processing for Form I-539 and Form I-765 applications are available.

It is expected that the announcement will be made by USCIS on its website as every new type of case gets eligible for premium processing. Conditions may also be placed on premium processing available for new case types when there is an announcement on the website.

These conditions may include restricting the availability of premium processing to all those cases which have been pending for a minimum duration or delaying the initiation of the premium processing schedule due to some administrative factor, like operating a necessary selection lottery.

Other than this, to have new case types be premium processing-eligible, processing will start only on the date when “all prerequisites for adjudication” are obtained by the USCIS, which means that the processing timeframe would start being counted by the agency only upon getting all the background checks, biometrics, interview information, and necessary documentation, as deemed to be suitable for the case type.

Based on the type of case and its needs, applicants and petitioners could have to wait for more time to see their cases get processed, as compared to the official timeframes for premium processing.

Things to Know

This regulation will expand premium processing service to additional case types, which would include:

  • Some Form I-765 employment authorization document (EAD) applications
  • Additional I-140 petition categories
  • Change or extension of status of some Form I-539 applications

This rule will start becoming effective 60 days after the Federal Register publication. However, the implementation will happen in phases – over a time of 3 years at least and will depend on the capacity of the DHS. It is expected that the phased implementation will start this fiscal year.

This rule will also announce a new method for determining the start of the premium processing timeframe for new case types on the basis of when “all prerequisites for adjudication” are obtained by the USCIS, which could prolong the real-time wait for the action to happen on a case.

Until the final rule comes into effect and the premium processing availability details are announced by the USCIS for the eligible cases, the availability of premium processing will be only for the I-140 and I-129 petition case types.

Foreign nationals and employers can start to work with their immigration service provider agencies for the review of cases that are pending (in case of the affected types of cases for which premium processing is expected to become effectual in this financial year) and for detecting those cases that are time-sensitive and need to be considered for premium processing when the case becomes eligible in type.

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