Philadelphia Immigration Lawyer Blog

The USCIS has issued a clarification on the issue of Premium Processing Service for certain Form I-140 petitions that are being filed for alien workers in H-1B nonimmigrant status and who are reaching the end of their sixth year in H-1B nonimmigrant status.

On June 16, 2008, the USCIS began accepting Premium Processing requests for I-140 applications if the worker is 1) currently in H-1B nonimmigrant status; 2) will reach the 6th year of their H-1B nonimmigrant stay in 60 days; 3) are only eligible for a further H-1B extension under AC21 §104(c)2 upon approval of their Form I-140 petition; and 4) are ineligible to extend their H-1B status under AC21 §106(a)3.

Under AC 21, a three-year extension of stay for an H-1B nonimmigrant alien can be allowed if he or she is the beneficiary of an approved Form I-140 petition and is otherwise eligible for lawful permanent resident status except for the fact that the employment-based preference visa is unavailable.

Under USCIS grants an H-1B extension of stay pursuant to §106(a) of AC21, the USCIS will grant an extension of H-1B stay in one-year increments, until a final decision has been made to either a) deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; b) to deny the EB immigrant petition, or c) to grant or deny the alien’s application for an immigrant visa or for adjustment of status.

Now, the USCIS is reporting a very high rejection rate of I-907 premium processing requests because applicants do not understand who can and who can’t take advantage of premium processing.

Here is the clarification:

1. Premium processing is only available if the beneficiary is currently in the U.S. in H-1B status. If you have already run out of H-1B time and have changed status or left the U.S., you are not able to benefit from premium processing at this time.

2. The current program is only available if the beneficiary is within 60 days of the end of the 6th year of H-1B time. The whole purpose of this premium processing option is to benefit individuals who can not otherwise qualify for a one-year extension and who need an approved I-140 to remain in the US. Right now, 6th year means just that—6th year. It does not mean “last year”. For example, someone in their 7th or 8th year of H-1B status is, currently, not eligible for premium processing.