On March 29, U.S. Citizenship and Immigration Services (USCIS) announced that it will expand its premium processing service to include additional immigration benefit case types, pursuant to a final rule issued by the Department of Homeland Security (DHS). Currently, premium processing is available only for employers filing Form I-129, Petition for a Nonimmigrant Worker (most commonly for H-1B, L-1, O-1, or TN classifications), and Form I-140, Immigrant Petition for Alien Workers for certain employment-based classifications. Under the new rule, premium processing services will also be available for Form I-539, Application to Extend/Change Nonimmigrant Status; Form I-765, Application for Employment Authorization; and additional classifications under Form I-140. The rule is intended to implement the Emergency Stopgap USCIS Stabilization Act passed by Congress and is part of USCIS’s efforts to reduce existing backlogs and provide needed relief to Employment Authorization Document (EAD) cardholders.

The new rule is set to take effect on May 31, 2022 – 60 days after the publication in the Federal Register, but implementation is anticipated to take at least three years starting this fiscal year.

For fiscal year 2022, USCIS plans to begin implementing premium processing for Form I-539 Application to Extend/Change Nonimmigrant Status, Form I-765 Application for Employment Authorization, and certain Form I-140 classifications (EB-1C classification as a multinational executive or manager, and EB-2 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver).

The new classifications of petitions and applications that will be eligible for premium processing will be phased in as follows:

FY2022:

• Form I-140 EB-1 Multinational Manager

• Form I-140, EB-2 National Interest Waiver (NIW)

• Form I-539 Change of Status to F, J, or M visa status

• Form I-765, Application for Employment Authorization for F-1, OPT, and J exchange visitors

FY2025:

• Form I-539 Change or Extension of Status for E, H, L, O, P, and R dependents

• Form I-765, Application for Employment Authorization for additional applicants (not yet defined)

What this means for Employers and Foreign Nationals:

• Check the USCIS website, where USCIS will post when each new case type becomes eligible for premium processing as well as any applicable conditions for those case types;

• Review their pending cases and, in collaboration with their Bhimdi Global legal team, identify any relevant cases that the company may want to upgrade to premium processing, once eligible;

• File extension of status and work authorization applications as early as possible based on current USCIS backlogs in case processing.

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.

Bhimdi Global will be closely monitoring the implementation of premium processing expansion and will issue further client alerts as USCIS announces premium processing availability for new case types.