U.S. Citizenship and Immigration Services (USCIS) has announced a final rule to expand premium processing, which will allow employers and individuals to pay a higher fee in exchange for quicker processing times in certain immigration categories. USCIS also announced a temporary final rule on employment authorization renewals and targets to reduce backlogs and processing times. Employers, attorneys and foreign nationals with long waits welcomed expanded premium processing but hope the time horizons for implementing the measures will be quicker than those announced.
Why the Rule is Important: USCIS processing times are long and remain a chief complaint of the individuals, employers and attorneys who interact with the U.S. immigration system. Catherine Rampell, Michelle Hackman, Miriam Jordan, Dara Lind and other journalists have described the impact of long delays on the spouses of H-1B visa holders and others waiting for employment authorization documents (EADs) or an EAD renewal. Wasden Banias and other firms have filed lawsuits to compel USCIS to process cases more quickly.
Expanding premium processing does not solve USCIS processing issues. However, it provides the agency with more revenue that can be used to address those issues and can help individuals and their employers overcome processing delays by paying an additional fee. The new rule fulfills a mandate from Congress.
What Will the Premium Processing Rule Do?: In an appropriations bill that became law on October 1, 2020, the USCIS Stabilization Act expanded USCIS authority “to establish and collect additional premium processing” fees. USCIS states that it will adopt a phased implementation of premium processing because the law specifies it cannot worsen existing wait times when implementing or expanding premium processing.
USCIS will expand premium processing for Forms I-539 (application to change/extend status), I-765 (application for employment authorization) and I-140 (immigrant petition for alien work) as soon as feasible. “DHS plans on a phased implementation strategy to allow current premium processing revenue to pay for development and implementation costs associated with expanding availability of the service,” according to USCIS.
“DHS plans to implement expansion for certain categories of Forms I-539, I-765 and both of the new I-140 classifications in FY 2022,” states USCIS. “DHS estimates that it will not be able to expand premium processing to the additional categories of Forms I-539 and I-765 until FY 2025 due to the possibility that premium processing revenues do not yet exist to cover any potential costs of hiring additional staff to expand premium processing to these additional categories without adversely affecting other benefit’s processing times, as directed by Congress.”
The rule will go into effect 60 days after publication in the Federal Register. These are the forms that will become eligible for premium processing first:
· “Form I-140 requesting EB-1 immigrant classification as a multinational executive or manager or EB-2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45 days;
· “Form I-539 requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status to or extension of stay in E-1, E-2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and
· “Form I-765 requesting employment authorization. Fee: $1,500. Timeframe: 30 days.”
“DHS is prioritizing premium processing for some Form I-765 categories,” according to USCIS. “DHS anticipates to begin premium processing Employment Authorization Documents for students applying for Optional Practical Training (OPT) and exchange visitors beginning in FY 2022.”
Analysis of the Rule: “The new premium processing regulation is a welcome step forward by USCIS and provides an important option for relief to massive processing delays for some individuals and businesses,” said Kevin Miner of Fragomen in an interview. “However, much remains unknown. In particular, the rule notes that while USCIS intends to implement premium processing for certain EADs (employment authorization documents) and dependent extensions this year, it may be several years before it expands premium processing to all categories of EADs and dependent extensions.
“Just having the rule in place isn’t useful if the agency takes years to implement it. I am hopeful that USCIS will be strategic in how it handles this implementation. For instance, if the agency were to implement premium processing for all initial EAD applications, this would be a major help for individuals and businesses while allowing USCIS to manage its workload. The rules that already exist extending EADs where there is a timely filed renewal combined with the ability to premium process the initial request for an EAD would go a long way toward solving the very difficult interruptions in work authorization that we are so commonly seeing.”
“While the stakeholder community is grateful for the relatively quick expansion of premium processing to additional I-140 categories, the delayed implementation for Forms I-539 and I-765 is disappointing,” said Dagmar Butte of Parker Butte and Lane in an interview. “Since, generally speaking, I-140 filers already have status and work permission while they wait for their applications to be adjudicated, the individuals most impacted by the continued delays are those who cannot work until the I-539 (application to change/extend status) and I-765 (application for employment authorization) are adjudicated.”
“EADs are included in the rule,” said Miner. “We know that premium processing for EADs will cost $1,500 and result in an adjudication within 30 days. The big unknown is how soon USCIS will implement premium processing for EADs, and for which ones. The rule leaves it to the agency to implement this by putting a notice on its website, so we have to wait and see.”
New USCIS “Cycle Time” Processing Goals: USCIS also announced it will establish new internal “cycle time” goals. “A cycle time measures how many months’ worth of pending cases for a particular form are awaiting a decision,” according to USCIS. “As an internal management metric, cycle times are generally comparable to the agency’s publicly posted median processing times. Cycle times are what the operational divisions of USCIS use to gauge how much progress the agency is, or is not, making on reducing our backlog and overall case processing times.”
What are the cycle time goals for particular USCIS forms?
– Two weeks: I-129 and I-140 (with premium processing);
– Two months: I-129 (without premium processing);
– Three months: I-765, I-131 Advance Parole, I-539, I-824;
– Six months: N-400, N-600, N-600K, I-485, I-140 (without premium processing), I-130 Immediate Relative, I-129F Fiancé(e), I-290B, I-360, I-102, I-526, I-600, I-600A, I-600K, I-730, I-800, I-800A, I-90, I-821D Renewals.”
Critics of USCIS will likely consider these goals aspirational. However, there is a benefit for a federal agency to establish benchmarks since it can help focus decision-making. “As cycle times improve, processing times will follow, and applicants and petitioners will receive decisions on their cases more quickly,” according to the agency. “USCIS will increase capacity, improve technology, and expand staffing to achieve these new goals by the end of FY 2023.”
Temporary Final Rule on EADs: USCIS stated that it “continues to make progress toward a temporary final rule currently named ‘Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants.’” Depending on the substance, the rule could provide an option for individuals who risk losing their jobs due to USCIS processing delays.
“I don’t think anyone has seen the text, but from the title, I think they must be extending out the automatic 180-day extension that you get with a timely filed renewal for some EAD categories,” said Kevin Miner, “This would be helpful, especially for adjustment of status EADs. We have had many cases where the EAD renewal is filed as far in advance for the expiration as USCIS allows (6 months), but with processing times taking 13 or 14 months in some cases, the individual still ends up with a gap in work authorization.
“By extending out the auto-extension period to say, 240 days like they do for H-1Bs, L-1s, and other nonimmigrant [temporary visa] categories, that would provide a better cushion and avoid those gaps. It would also likely significantly reduce the number of EAD expedite requests the agency has to handle, which would allow them to better allocate resources internally.”
Nothing precludes USCIS from proposing broader solutions, including changes in the process, that would limit the need for individuals to file—and the agency to process—requests for employment authorization. Under a recent settlement, USCIS agreed to “issue policy guidance that states that L-2 spouses are employment authorized incident to status.” (That means no initial filing requesting employment authorization would be necessary.) There may be statutory differences with the spouses of L-1 visa holders. However, USCIS could consider a range of regulatory or administrative actions in other categories. Miner points out a regulation will not be quick. On the other hand, USCIS has proposed a potential three-year phase-in for the premium processing rule.
The Trump administration enacted many policies designed to make it more difficult to gain approvals in various immigration categories, made the process more cumbersome and, as a result, cases piled up and wait times increased. During the Trump administration, the number of pending cases at USCIS increased by 37%, from 4.7 million to 6.4 million, between the first quarters of FY 2017 and FY 2021, according to a National Foundation for American Policy analysis, and the trend has continued.
USCIS Director Ur Jaddou started her job less than 8 months ago and inherited what observers consider a train wreck years in the making. Ultimately, Jaddou and USCIS will be judged by their ability to reduce wait times for immigration benefits. Expanding premium processing, allowing more leeway on employment authorization renewals and establishing clear targets to reduce processing times represent steps in the right direction.