The United States Citizenship & Immigration Service (USCIS) is one of the agencies funded by the federal government. The agency has recently been experiencing financial crisis after years of Trump administration policy changes and after months of the Covid-19 pandemic. Currently, USCIS requires employers and individuals to pay an additional $1,440 application fee to request expedited service to have certain application types processed within 15 calendar days using “premium processing”. “Premium processing” applies to the following application types: H-1B, H-2B, L-1A, L-1B, E-1, E-2, O-1, P-1, and TN nonimmigrant applications filed using Form I-129, as well as EB-1A, EB-1B, EB-2 (except NIW) and EB-3 I-140 immigrant petitions.
USCIS was scheduled to implement a fee increase starting October 2, 2020. However, a federal judge issued a nationwide preliminary injunction against the fee increase. The ruling by Judge Jeffrey S. White, of the U.S. District Court for the Northern District of California, strongly indicated that “the Acting Secretary of Homeland Security Chad Wolf and his predecessor had been invalidly appointed to their posts and lacked the legal authority to issue the final fee increase rule.” As a result, on September 29, 2020, the agency posted on its website that the increase will not take effect stating that “while the rule is preliminarily enjoined, they will continue to accept USCIS forms with the current editions and current fees; and use the regulations and guidance currently in place to adjudicate applications and petitions.”
Thereafter, on September 30, President Trump signed H.R. 8337 – the Continuing Appropriations Act, 2021 and Other Extensions Act, which will fund the government through December 11, 2020. The bill was introduced by Rep. Nita M. Lowey (D-NY) which included the language from Emergency Stopgap USCIS Stabilization Act (H.R. 8089). The bill is aimed to help the USCIS budget loss by giving the agency instant access to existing “premium processing” funds to pay for operational expenses, which are otherwise reserved for infrastructure improvement. It was also a result of having to temporarily extend immigration categories that are about to be terminated.
The signed bill came with an interesting stipulation that may hopefully solve the USCIS financial crisis – the law requires USCIS to increase its fee for “premium processing” of currently allowed visa applications to $2,500 from $1400 (except for H-2B and R-1 petitions). It also requires USCIS to apply premium processing to other visa categories that have been back logged in regular processing and authorizes “premium processing” services to be provided to: employment-based nonimmigrant petitions and associated applications for dependents; Form I-140 petitions Immigrant Petition for Alien Workers; Form I-539 Application To Extend/Change Nonimmigrant Status; Form I-765 Application for Employment Authorization; and any other immigration benefit type deemed appropriate by the Secretary.
Despite the enactment of this new law, the fee increases and expanded availability of “premium processing” to other visa categories will not happen until USCIS is able to implement the changes. An announcement will likely be made in the coming weeks.
USCIS is allowed by the new law to designate by rulemaking an option for “premium processing” of “any other immigration benefit type that the Secretary deems appropriate.” It also allows for a biennial adjustment of premium processing fees based on the Consumer Price Index without rulemaking. It explains the faster processing times will not begin until “all prerequisites for adjudication are received” by DHS and confirms that providing expanded premium processing services does not result in additional days in processing times for other benefit applications.
The new law is also requiring rulemaking to set fees for expanded “premium processing” services, but it must be consistent with the following:
a. EB-1 petitions for Multinational Managers and Executives or EB-2 NIW petitions – fee is no greater than $2,500 and processing time is no greater than 45 days.
b. Change of status requests for F, J and M – fee is no greater than $1,750 and processing time is no greater than 30 days.
c. Change of status requests for dependents seeking E, H, L, O, P and R – fee is no greater than $1,750 and processing time is no greater than 30 days.
d. Form I-765 – fee is no greater than $1,750 and processing time is no greater than 30 days.
Another requirement is a semi-annual congressional briefing and that, within 180 days, USCIS provide a five-year plan on establishing:
a. Electronic filing procedures for all applications and petitions;
b. Acceptance of electronic filing at all locations; and
c. Issuance of all correspondence and notices electronically.
One positive effect of the increase of “premium processing” fees is that there will be more employment-based visas that will be processed as long as companies, employers and its employees are willing to pay the higher costs of “premium processing”. “Premium processing” is also helpful in certain specific scenarios. For example, if someone is applying for a H1B visa, it will allow the foreign worker to work right away once processing is finalized or he/she can work within fifteen calendar days. If it is not done through “premium processing”, applications usually take six months to a year.
The new law does not apply “premium processing” to EB-5 investors, “special immigrant” petitions (EB-4 including religious workers), adjustment of status to permanent residence for employment-based cases, family sponsorship cases, and naturalization. It is very unlikely that USCIS will apply the rule to these case types and will probably concentrate more on employment-based applications. It will also take years for USCIS to implement “premium processing” for new visa categories.
The changes in fees & law affect a lot of foreign workers and individuals. It is recommended that both employers and employees alike seek the advice of an experienced immigration attorney to help with visa processing either “premium processing” or regular processing. If you have any questions or would like to know more about the recent changes with the UCIS, please contact our office by e-mail firstname.lastname@example.org, social media, or by calling our toll-free number at (866) 201-6355 to schedule a consultation.