On March 20th, US Citizenship and Immigration Services ("USCIS") announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions, ostensibly due to the effects of the COVID-19 pandemic. Although the Administration's true motives are often difficult to assess, on its face, the announcement was not all that different than we have seen in the past, at this particular time of year.
By way of background, premium processing is the USCIS' system for expediting the approval of certain immigration sponsorship filings, allowing employers to bypass the often exorbitant delays in normal agency processing. That faster level of service, though, comes with a hefty price tag: currently an additional $1,440 filing fee per petition. Form I-129 petitions are one of the most commonly filed petitions by employers, required for the vast majority of temporary work visa sponsorships; and, Form I-140 petitions are a similarly common and crucial step in more long-term, Permanent Residence (or "greencard") sponsorships.
This month, the USCIS will resume accepting premium processing requests and fees for most I-129 and I-140 petitions, in a rolling re-start. That is incredibly welcome news for employers and employees alike. The COVID-19 pandemic has resulted in an unprecedented, temporary furlough or outright termination of employment for thousands of temporary workers in the US. The unavailability of premium processing has made it extremely difficult for those employees and their families to remain in the US, and yet some of their home countries have refused to allow them to return, because of coronavirus travel bans. Hence, they were stuck in a Catch-22 situation, with few options to maintain lawful status in the US. Similarly, the inability to expedite I-140 greencard petitions has delayed some employers' ability to file a subsequent petition to timely extend their employee's temporary immigration status and work authorization.
On May 29th, the USCIS announced that it will resume premium processing in the month of June, according to the following schedule. For ease of understanding and planning, we have "translated" the USCIS announcement into hopefully more familiar terms. On each of these dates, premium processing will again be available for the types of sponsorship filings mentioned below:
June 1st:
- All I-140 greencard sponsorship petitions, which were previously eligible for premium processing (e.g. most PERM-based "EB-3" and "EB-2" petitions, but not "EB-1 Manager/Executive" petitions).
June 8th:
- All H-1B petitions which were not part of the annual "cap"/quota lottery drawing system in March, and which were filed before June 8th (e.g. H-1B extensions; employer changes; worksite amendments; etc.).
- All other I-129 petitions filed before June 8th, which were previously eligible for premium processing (e.g. L-1 renewals; H-1B1, E-3, and TN renewals; etc.).
June 15th:
- All H-1B petitions filed after June 8th which are always exempt from the annual "cap"/quote lottery system entirely, by virtue of the employee working for (or at) certain, special, qualifying institutions (e.g. most major universities, some non-profit organizations affiliated with universities, etc.).
June 22nd:
- All I-129 petitions newly filed for H-1B workers of any type, including those lucky "cap"/quota lottery drawing winners from March, as well as for all other temporary work visa classes previously eligible for premium processing (i.e. everything is back to normal with the USCIS' premium processing service).
We hope that the combination of the COVID-19 pandemic disruptions and the two-prong USCIS premium processing suspension has not caused any irreparable harm to your critical foreign worker populations. As always, please feel free to contact your DW immigration attorney if you have questions about whether premium processing is necessary, possible, and/or appropriate for any of your sponsored foreign workers. And, here's also to hoping that a USCIS agency flush with "restored" premium processing cash will find some way to reduce the ballooning, normal, petition backlogs, and the resulting delays in approving even the most straight-forward of employer sponsorship requests under the law.
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