DHS Issues Final Rule to Expand USCIS Premium Processing Program in Phases
The regulation will expand premium processing service to additional case types, including additional categories of I-140 petitions, certain Form I-765 employment authorization document (EAD) applications, and some Form I-539 applications to change or extend status. The rule will take effect 60 days after publication in the Federal Register, but implementation will occur in phases over a period of at least three years and dependent on DHS’s capacity. The phased implementation is expected to begin this fiscal year with EB-1 Multinational Manager and EB-2 National Interest Waiver (NIW) I-140 petitions, Form I-539 applications to change to F, J, or M status, and Form I-765 applications for F-1 Optional Practical Training (OPT) and J exchange visitor employment authorization. In FY 2025, premium processing is expected to become available for Form I-539 applications for extensions and changes of status for dependents of H, L, E, O, P, and R principal nonimmigrants, and for Form I-765 applications for an as yet unspecified additional group of EAD application types. The rule also announces a new method for determining when the premium processing clock starts for new case types, based on when USCIS receives “all prerequisites for adjudication,” which could lengthen the actual wait time for action on a case.
On March 30, the Department of Homeland Security (DHS) will publish a long-awaited final regulation that sets the groundwork for expansion of U.S. Citizenship and Immigration Services’ (USCIS) premium processing program to several additional immigration benefit case types, but defers the start of implementation until later this fiscal year.
USCIS announced the new rule as part of its actions to reduce backlogs and to provide certain relief to work permit holders. The rule is intended to implement legislation that was signed into law in October 2020 as part of the Emergency Stopgap USCIS Stabilization Act, and largely mirrors the premium processing case types, fees, and adjudication timeframes detailed in that legislation. In February 2021, USCIS expanded premium service to E-3 petitions pursuant to the legislation but until now, the agency had not initiated expansion to any other case types.
The final rule takes effect 60 days after publication in the Federal Register, but the actual implementation of expanded premium processing will be phased in over a period of at least three years and is likely to impose conditions or limitations on the availability of premium service.
By September 30, 2022, the end of this fiscal year, USCIS plans to expand premium processing eligibility to Form I-140 immigrant worker petitions in the EB-1 Multinational Manager and EB-2 National Interest Waiver (NIW) categories, Form I-539 applications to change to F, J, or M nonimmigrant status, and Form I-765 applications for F-1 OPT and J exchange visitor employment authorization. USCIS will announce on its website the premium processing availability details and any conditions that may apply.
Until the final rule takes effect and USCIS announces the premium processing availability details for the newly eligible cases, premium processing will only be available for the currently eligible I-129 and I-140 petition case types. Employers and foreign nationals can begin working with their immigration counsel to review pending cases in the affected case types for which premium processing is slated to take effect this fiscal year to identify time-sensitive cases that merit consideration for upgrading to premium processing when the case type becomes eligible.
However, employers and foreign nationals should be aware that USCIS does not intend to include all EAD applications in the premium processing program. The final rule suggests that a substantial percentage of EAD application case types may ultimately not benefit from premium expansion. This fiscal year, only F-1 OPT and J exchange visitor EAD applications are expected to become eligible for premium processing, categories which DHS indicates represent only about 10% of EAD application filings. Expansion to other EAD categories is not expected until FY 2025, and although the rule does not identify which other EAD categories may become eligible in that year, data provided in the final rule suggest that the FY 2025 expansion may cover only an additional 5% or so of overall EAD filings.