News Update - June 14, 2008
By Alan Lee, Esq.†‡
U.S.C.I.S. Offers Limited I-140 Premium Processing and Two-year
Employment Authorization Documents
On June 11, 2008, U.S.C.I.S. announced that I-140 premium processing
would become available beginning June 16th for most employment based
aliens who are reaching the end of their sixth year of H-1B nonimmigrant
status and are not eligible to gain extensions by any other method.
Under premium processing, U.S.C.I.S. guarantees it will reach the
case within 15 days of filing in exchange for a $1000 fee. Premium
processing is available for all I-140 employment based cases except
intracompany transferee (EB-13) and national interest waiver (NIW)
cases. This move may prove extremely beneficial for individuals
who did not or will not be able to put in a labor certification
application 365 days prior to the ending of their sixth year under
H-1B status. Under current law, individuals in H-1B status who have
reached the mandatory six year limit are only eligible for extension
if they have had labor certification applications filed for 365
days or if their I-140 petitions have been approved. Because of
the short period of time that PERM labor certification applications
are taking to process, there may be many cases in which individuals
who have already missed or will miss the 365 day limit will still
be eligible for H-1B extension so long as the PERM labor certification
and I-140 petition are approved. Even non-labor certification based
employment beneficiaries such as EB-11 extraordinary aliens and
EB-12 outstanding professors and researchers, or Schedule A pre-certified
nurses, physicians, and exceptional aliens may be benefited as the
current processing time charts of the Nebraska and Texas service
centers shows petition adjudication backlogs stretching from 1/19/07-7/5/07
and 8/26/07 respectively in the employment based categories. (Nebraska
and Texas are the major U.S.C.I.S. centers charged with adjudication
of employment based immigrant petitions.) The service is available
for aliens currently in H-1B nonimmigrant status whose sixth year
will end within 60 days and can only extend H-1B status with approval
of an I-140 petition. U.S.C.I.S. wishes petitioners to submit with
their filings a copy of the alien's I-94 arrival/departure record
showing current H-1B nonimmigrant status; copies of all I-94s and
I-797 H-1B or L approval notices that have been issued to the alien;
a copy of the relating I-140 petition receipt notice if the I-140
was previously filed; and a copy of the labor certification approval
letter of the Department of Labor, if filing under the EB-2 or EB-3
classifications.
On June 12, 2008, U.S.C.I.S. announced that it will begin issuing
two year employment authorization documents (EADs) starting on June
30, 2008, for aliens who have filed I-485 adjustment of status applications
and whose priority dates have retrogressed. The agency will decide
whether to renew an EAD for either a one-year or two-year validity
period based upon the most recent Department of State visa bulletin.
This is a good public-relations move by the U.S.C.I.S. which will
not cause much impact upon the agency's revenue stream. The reason
is that U.S.C.I.S. raised its fees enormously in July 2007 and such
fee increase allowed for free filing of EADs when accompanied by
an I-485 application to adjust status. The move thus also frees
up valuable U.S.C.I.S. resources which would otherwise be spent
working on fee-less EAD applications.
Although these are limited benefits, they are certainly better
than those in the present immigration scheme even if the latter
move might at least be partially motivated by agency self-interest.
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