I-140 Premium Processing

I-140 Premium Processing

I-140 premium processing is available or suspended from time to time. Therefore, before applying for I-140 premium processing, make sure that it is currently available and applicable for you.

For an additional fee, the U.S. Citizenship and Immigration Services (USCIS) will process an I-140 within 15 calendar days of receipt. A USCIS officer will review the application and determine the appropriate action, which in many cases would be an approval. Alternatively, an officer could issue a Request for Further Evidence (RFE), a Notice of Intent to Deny (NOID), a denial, or a notice of a fraud investigation. In the case of an RFE, the USCIS will make a decision within 15 days of receipt of the response.

While many people would benefit from premium processing, in some categories people may actually be harmed or may not provide any real benefits by filing for premium processing. There are pros and cons of premium processing as described in detail below. In most cases, the advantages outweigh the cost.

Moreover, premium processing may delay the regularly filed cases for people who cannot afford to pay the extra fee or choose not to do so.

Even though going through premium processing approves an I-140 faster, a person cannot file for an I-485 or do consular processing until the priority date is current. Therefore, premium processing does not get you a green card any sooner. However, with an approved I-140, changing your job on an H-1 visa becomes easier because you can retain the priority date and an H-4 visa holder spouse can also apply for an EAD.

Unless the I-140 is self-petitioned, only the employer or the attorney can file the premium processing form (Form I-907) to request for premium processing. However, the fee for the same can be paid either by the sponsoring employer, an attorney, or by the alien beneficiary.

Pending cases that have been issued a receipt notice can be upgraded to be premium processed at any time if desired.

I-140 Premium Processing Eligibility

Premium processing for an I-140 is available for the following employment-based immigrant visa classifications:

  • EB-1 – First category
    Available for Aliens of Extraordinary Ability and Outstanding Professors and Researchers but not for Multinational Executives and Managers

  • EB-2 – Professional with Advanced Degrees, Exceptional Ability
    National Interest Waiver (NIW) seekers are NOT eligible for premium processing. NIW petitions are complicated and require significant time for detailed review.

  • EB-3 – Skilled Workers, Professionals, Other Workers
    Schedule A cases (nurses, physical therapists) are eligible.

    Even if they fall within the EB-3 classification, the following types of cases would not be eligible for premium processing:
    • A labor certification substitution request

    • A duplicate labor certification request (i.e., cases where the original labor certification is not included)

    • A second I-140 filing if an initial I-140 remains pending

    These cases have additional processing requirements that cannot be met within the premium processing time frame.

However, out of the above classifications, premium processing is only available for alien beneficiaries who, as of the date of filing the Form I-907:

  • Are the beneficiary of a Form I-140 petition filed in a preference category that has been designed for premium processing service;

  • Have reached the sixth-year statutory limitation of their H-1B stay, or they will reach the end of their sixth year of H-1B stay within 60 days of filing;

  • Are only eligible for a further H-1B extension under AC21 $104(c) upon approval of their Form I-140 petition; and

  • Are ineligible to extend their H-1B status under AC21 $106(a).

I-140 Premium Processing Procedure

In order to determine whether a particular petition meets the conditions, the petitioner must submit:

  1. A copy of the alien beneficiary’s Form I-94, Arrival/Departure Record, reflecting current H-1B nonimmigrant status;

  2. Copies of all Form I-94s, Arrival/Departure Record, and I-797 H-1B or L approval notices that have been issued on his or her behalf.

  3. A copy of the relating Form I-140 petition receipt notice if the Form I-140 was previously filed; and

  4. A copy of the labor certification approval letter issued by the Department of Labor if filing under the EB-2 or EB-3 classifications.

Form I-907 premium processing service requests will be rejected and returned with the I-907 fee, and the Form I-140 petition will be processed according to standard procedures if the Form I-907 is:

  • Submitted without documentation establishing the conditions for availability noted above; or

  • Incorrectly submitted concurrently with a Form I-140 petition at a USCIS office without geographic jurisdiction over the Form I-140 petition; or

  • Submitted to request a premium processing service for a Form I-140 petition filed for an alien beneficiary who is eligible to extend his or her H1-B nonimmigrant status under AC21 $106(a) as of the date that the Form I-907 is received by the USCIS.

Advantages and Disadvantages

1 Year Extensions of H1B

If the person’s priority date is older than 1 year (the labor certification or I-140 was filed 365 days prior to the expiration of the H-1), he/she can file for an H-1B status extension one year at a time. More information.

However, if the I-140 petition were to be denied, such extensions would not be possible unless the denial was appealed.

3 Years Extensions of H1B

If the person’s I-140 is approved and the priority date is not current, the person is eligible to get an extension of their H-1B in increments of 3 years at a time. You are NOT required to have a one year old priority date. Just the I-140 approval is enough. More information.

If an I-140 is approved faster using premium processing, it will save time, money, and effort for both the employer and employee as they don’t have to file for 1 year extensions. Additionally, the employee does not have to renew their driver’s license every year in some states that renew licenses only up to the duration of legal stay in the US.

AC-21 Portability

Under AC-21, an alien can change jobs and continue the green card process if the labor certification (if required) and I-140 must be approved and I-485 must be pending for at least 180 days, as long as the new job is in the same or similar category.

Therefore, the person can change their job quicker if the I-140 is approved quicker.

Job Change – Transfer of Original Priority Date

This is not related to AC-21 portability. This is very useful in a case where you are planning to change jobs or you fear that your employer may be thinking about laying you off or firing you.

If the person already has an approved I-140, but the I-485 is not filed during priority date not being current, and decides to change their job, either with the same employer for a different job or a new employer in a new position, the green card case would have to be started all over again, including the labor certification(if required), I-140, and I-485 (or consular processing). However, if the person already had an approved I-140 from the previous job, it is possible to request to retain that priority date for a new I-140 petition.

Job Change – EB3 to EB2

This is very useful in case you are planning to change jobs or you fear that your employer may be thinking about laying you off or firing you.

Because the EB-3 classification traditionally has a long backlog, some people might have gained advanced degrees, acquired several more years of experience, or are offered jobs at a higher level because of a promotion or other reasons while their case is pending for many years.

If the new job with the same or different employer requires an advanced degree and/or experience, it is possible to file the green card again in the EB-2 category. Even though the green card case would have to be started all over again, including a labor certification (if required), I-140, and I-485 (or consular processing), if the person had an approved I-140 from the previous job, it is possible to request to transfer the original priority date to the new I-140 petition.

Possible End of Concurrent Filing

If the USCIS discontinues the concurrent filing of an I-140 and I-485, the I-140 must be approved and the priority date must be current in order to file an I-485.

If the I-140 is approved earlier, it would be possible to file an I-485 as soon as the priority date is current. Otherwise, even if the priority date is current, the person would have to wait to get the I-140 approved. If the priority date dates retrogresses by the time I-140 is approved, the I-485 cannot be filed. Even though the I-485 cannot be approved if the priority date is not current, the filing of an I-485 may offer potential advantages for AC-21 portability and a work permit for dependents.

Possible Earlier Approval of I-485

It is possible that if your priority date is current and your I-140 is already approved, the I-485 would be approved faster compared to a I-140 pending for a long time.

Consular Processing

For those whose priority date is either current or close to current, if consular processing is selected with I-140 premium processing, it may be possible to get the green card faster than with an I-485.

However, if the person never filed an I-485 and the priority date retrogresses, he/she would not be able to take advantage of AC-21 portability.

Riskier I-140

If the sponsoring employer is not doing well financially or the labor certification is challenged by the USCIS, approval of the I-140 is at risk. With premium processing of an I-140, you will come to know about the outcome sooner so that you can either appeal the I-140 decision or change your employer. Of course, this would be advantageous only if you have some time left on the original 6 years of the H-1B.

Peace of Mind

For many people, given the stress associated with the long wait for permanent residence, the peace of mind that one more state of the green card process is cleared makes it worth spending the extra money.

H-4 Visa EAD

With an approved I-140 for the H-1 visa holder, their spouse on an H-4 visa can apply for an EAD.

Older dependent children – Child Status Protection Act

Applicants who have a teenager or dependent children close to 21 years old should carefully analyze the situation before applying for premium processing.

Before the Child Status Protection Act (CSPA) came into effect, dependent children who turned 21 years of age lost the ability to obtain the green card as derivatives of their parents’ green card case. However, under the CSPA, to determine the derivative child’s age for immigration purposes, his/her actual age at the time priority date is current is reduced by the amount of time the I-140 was pending. If the I-140 is approved faster and it takes a long time for the priority date to be current, that is less time the child is able to subtract from his/her age. This decreases the chance of protection under the CSPA. The child must seek to acquire the status of permanent resident within 1 year of the priority date being current to use the CSPA.

A child is 18 years 4 months old when the I-140 is filed. It takes 6 months to get the I-140 approved. The child is 21 years and 3 months old when the priority date becomes current. Under the CSPA, the child can get a green card by subtracting 6 months from the 21 years and 3 months, that is 20 years and 6 months of age which is less than 21 years.

However, if the I-140 were approved in 15 days, the child can NOT get the green card because subtracting 15 days from 21 years and 3 months is 21 years and 2.5 months which is more than 21 years.

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