Premium Processing Reinstated for Certain I-140 Petitions
June 12, 2008
The US Citizenship and Immigration Service (CIS) just announced that it is reinstating Premium Processing service for the I-140 Immigrant Petition for Alien Worker for certain H-1B visa holders reaching the six-year maximum time limit.
In general, the H-1B nonimmigrant visa allows an individual to work in the US for a maximum six-year period of time. Upon reaching the six-year cap, an individual must depart the US for at least one year before being eligible to obtain another H-1B visa.
More often than not, however, individuals wish to remain permanently in the US rather than returning to their native country once the six-year H-1B cap is reached. As such, individuals typically proceed with the permanent residency process--which entails a PERM labor certification, I-140 Immigrant Petition for Alien Worker, and I-485 Adjustment of Status--while residing and working in the US under the H-1B visa.
Due to lengthy delays in the processing of petitions by the Department of Labor and CIS, however, many individuals seeking permanent residency in the US reach the maximum six-year H-1B cap before their application for permanent residency can be granted. Realizing the hardship that is caused to businesses and immigrants alike, the American Competitiveness in the Twenty-First Century Act (AC21) was signed into law on October 17, 2000. The purpose of the law is to address this dilemma by allowing extensions beyond the six-year time limit for H-1B visas under limited situations.
One situation pertains to individuals who are in an employment category that is subject to a retrogressed visa backlog. Under AC21 §104(a) , an H-1B visa holder may extend an H-1B visa beyond the six-year maximum if: (1) he has an employment-based I-140 Petition approved on his behalf; and (2) he is eligible to be granted permanent residency except for the per-country limitations. If so, the individual may obtain H-1B extensions valid for 3 years each until the adjustment of status application is granted. Dependents are similarly eligible to extend their H-4 visas for the same duration.
Another provision, AC21 §106(a),allows extension of an H-1B visa beyond the six-year maximum if: (1) he is the beneficiary of an employment-based immigrant petition or application for adjustment of status; and (2) 365 days or more have elapsed since the filing of the labor certification or I-140 Immigrant Petition for Alien Worker. These individuals, as well as their dependents, may obtain H-1B extensions valid for 1 year each until the adjustment of status has been approved.
For individuals who cannot qualify under AC21 §106(a) because no labor certification or I-140 Immigrant Petition had been filed more than 365 days before reaching the six-year cap (i.e. end of their 5th year as an H-1B visa holder), the only possibility for obtaining an H-1B extension beyond the six-year cap requires an approved I-140 Petition. This has been problematic because the CIS is presently taking a year or more to process the I-140 Petition, which is time that is not available.
Recognizing this hardship, the CIS recently announced the reinstitution of the Premium Processing service for I-140 Petitions for individuals reaching the six-year H-1B visa cap within sixty (60) days. Additionally, the applicant must prove that he is not eligible for an extension under AC21 §106(a) and therefore requires an approval of the I-140 Immigrant Petition so that they may obtain an H-1B extension under AC21 §104(a).
Under the Premium Processing service, the CIS will expedite the I-140 Petition guaranteeing that within 15 calendar days of receipt of a Premium Processing request and the $1,000 filing fee, CIS will either issue a decision, notice of intent to deny, request for evidence or notice of investigation for fraud. The CIS will begin accepting Premium Processing applications for those who meet the foregoing requirements starting June 16, 2008.
Individuals who find themselves in this situation must proceed with the Premium Processing service as soon as they are eligible to guarantee sufficient time to submit the H-1B extension application thereafter. As timing is critical, individuals must have competent legal counsel to ensure that all matters are handled properly.
Aquino & Aquino, A Professional Law Corporation, also handles personal injury, family law, criminal defense, employment discrimination, unlawful termination, wills, and living trusts.
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