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Would You Like Premium Processing with That Order?

Friday, October 28, 2011

USCIS’s Premium Processing Service provides 15-day turnaround for certain employment-based petitions and applications. This speedy service comes at a cost: $1,225, and that is in addition to any other CIS fees.

Premium processing applies to a number of nonimmigrant visa categories, including most “E,” “H,” “L,” “O,” “P,” “Q,” “R” and “TN” visa petitions, and many first-, second- and third- preference immigrant visa petitions for alien workers. It is always wise to check with USCIS and your attorney, as Premium Processing service periodically has been suspended (and reinstated) for certain visa categories.

According to Citizenship and Immigration Services, “USCIS will issue and serve on the petitioner or applicant an approval notice, a denial notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation within the 15 calendar day period. If the petition or application requires the submission of additional evidence or a response to a notice of intent to deny, a new 15 calendar day period will begin upon receipt by USCIS of a complete response to the request for evidence or notice of intent to deny.”

If USCIS fails to adjudicate the petition within 15 calendar days, the premium processing fee is refunded. The clock starts ticking when the current version of Form I-907 (Request for Premium Processing Service) is received at the correct filing address.

According to CIS, the rapid decision on Premium Processing (PP) cases does not disadvantage regular petitioners as extra personnel are devoted to PP cases (queue-jumping PP cases therefore don’t result in longer wait times for “regular” cases). Moreover, certain cases can still be expedited on humanitarian and other grounds without having to pay. Of course, in a perfect world, we would all get “premium” service, but not pay $1,225 for the privilege.

The utility of Premium Processing varies from case to case, but a few cautionary notes are in order. Firstly, having an I-140 petition approved does not enable filing of “adjustment of status” until the priority date is current, so it does not necessarily speed up the acquisition of a green card. Secondly, in H-1B cases, there is a numerical cap on visas issued in a fiscal year, and filing a case using PP does not provide the petitioner any benefit, as H-1B petitions are counted on the date of receipt, not adjudication.

Regardless, for someone filing an immigrant visa petition who may be changing employers, PP could be very advantageous. If the adjustment of status has been pending for 180 days or more, it is possible to change employers (provided the new assignment has similar job duties), but this is a bad idea if the I-140 petition is still pending as there could be a Request for Evidence. In such cases, the employer would not be of much help if they knew the employee was moving on. Quick adjudication of the I-140 resolves this issue. There are also several other specific cases where quick approval of an I-140 can be helpful.

Beyond questions of immigration strategy, and these vary, naturally, from individual to individual, there is a second issue: Does filing a case using Premium Processing affect the decision? This is difficult to say conclusively as no statistics are available regarding rates of approval/denial or Request for Evidence on PP versus regular processing cases. However, anecdotally, many immigration practitioners report an increased chance of an RFE on PP cases. (The RFE is not a denial, but a request by CIS that the applicant furnish additional evidence to demonstrate the merits of its case).

In addition, lately, there seems to be a high number of PP RFEs issued on the 13th, 14th, and 15th days of the process. Why this is so is open to speculation. CIS almost never drops the ball on the 15-day PP time-frame. One imagines that an officer may feel pressured to review the case, and yet not have to the time to do so in the 15-day period. The solution? Move the file off his or her desk by sending out an RFE. Such a pattern has also been observed on regular cases before major holidays; apparently, examiners wish to be rid of the file before the holiday, but can’t in good conscience approve or deny a petition they have not examined, and so issue an RFE.

One shouldn’t over think such things. There is the same theory regarding having surgery before holidays, and there was an urban legend that one should never buy a car made on a Monday or Friday. Monday, the auto worker is hung over and grumpy after the weekend, and Friday he is trying to cut corners and get going on his barbeque or fishing trip. So, in other words, buy a car assembled on late Tuesday morning and you are fine; otherwise forget it. To return to the matter of PP cases, while they do seem to garner a greater number of RFEs than regular cases, there doesn’t seem to be any effect on the rate of approval or denial. You get the good news, or bad news, faster, but it seems the news is the same (unless it’s an RFE).

Is Premium Processing worth it? For some people it is a necessity, for others a good strategic move, and, for many, an unnecessary expense that does nothing to either advance or hinder their case. If you can avoid it, do so, but it is certainly a useful tool to have at one’s disposal. Given this, hopefully, PP will be extended to other types of cases beyond the ones enumerated above, as it can provide real value to certain petitioners.

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