House Passes Measure to Expand USCIS Premium Processing and Stave Off Agency Furloughs; Senate Path Unknown

The U.S. House of Representatives has unanimously passed an emergency stopgap bill that would expand the premium processing program at U.S. Citizenship and Immigration Services (USCIS) in order to prevent around 13,000 agency employees from being furloughed on August 30.

If passed by the full Congress and signed into law by the president, the bill would permit USCIS to use premium processing funds for normal agency operations as an alternative to USCIS’s recent request for $1.2 billion in appropriations. It would also increase agency revenue generated through the premium processing program by increasing the permissible fees and expanding the categories of immigration benefits eligible for the expedited service.

Prospects of the bill’s passage remain unknown given that the Senate is not scheduled to return to session until September. It is also unclear whether the bill will receive enough support to pass in the Senate.

Background

As has been widely reported, USCIS currently plans to furlough 13,400 employees (or about 70% of its workforce) on August 30 unless the agency receives additional funding to close its claimed budget shortfall. The agency claims that it needs $1.2 billion in appropriations from Congress to make up for fees lost due to a drop in application and petition filings in the last several years. If a furlough occurs, case processing at USCIS would be significantly delayed, if not effectively suspended.

USCIS is largely funded by filing fees, most of which maintain the agency’s operations. Premium processing fees are typically limited to support only the premium processing program and some agency infrastructure improvements. The House bill would increase and free some of these funds to support normal agency operations

Proposed changes to premium processing

The current premium processing program requires USCIS to respond to an immigration benefits filing (with approval, denial or request for further evidence) within 15 calendar days (slated to increase to 15 business days on October 2), for a fee of $1440. Most, but not all, Form I-129 nonimmigrant and Form I-140 immigrant visa petitions are eligible for premium processing service at this time.

The House bill contains the following expansions of premium processing eligibility and fees:

• Increase in fees for existing premium processing categories: For immigration benefits already eligible for premium processing, increase the fee to $2500, from $1440 (except for H-2B and R nonimmigrant visa petitions). The 15-day processing time would remain in place.
• Implement premium processing service for the following new categories:
  
  • EB-1 multinational managers and EB-2 national interest waivers: Fees must be less than $2500 and processing times less than 45 days.
  • Change nonimmigrant status to F, J or M (Form I-539): Fees must be less than $1750 and processing times less than 30 days.
  • Changes or extensions of status for Dependents of E-1/E-2, H, L, O, P, or R nonimmigrants (Form I-539): Fees must be less than $1750 and processing times less than 30 days.
  • Applications for employment authorization (Form I-765): Fees must be less than $1500 and processing times less than 30 days.

The bill does not specify whether the above timeframes refer to business or calendar days, however, premium processing service is already slated to move to a calendar day processing timeframe on October 2.

What a USCIS furlough would mean for employers and foreign nationals

It is unknown at this time whether the House bill will succeed in passing through the full Congress in order to become law. In the meantime, USCIS furloughs on August 30 remain a possibility.

The situation remains fluid, but employers should be aware of the following as events unfold:

• If a furlough occurs, USCIS processing slowdowns are likely, at least for a time.
• Employers should continue to timely submit petitions, applications, and responses to requests for evidence (RFEs) even if receipting and other processing is suspended or delayed.
• Some foreign nationals’ work authorization may end if their extensions or employment authorization document (EAD) renewals are not approved by the expiration of their current work authorization or any automatic extension of work authorization on the basis of a timely filing.

The length of any furlough is also unknown. By September 30, Congress must pass an appropriations package or stopgap measure to fund the federal government for FY 2021, which could include additional funds for USCIS, depending on where agency funding and operations stand at that time.