Impact and Timing of the DHS Final Rule to Expand Premium Processing

Today, March 30, 2022, the Department of Homeland Security (DHS) published a final rule expanding premium processing for multinational managers, advanced degree holders seeking a national interest waiver, nonimmigrant dependents, and EAD applicants. Premium Processing is a program that allows employers or employees to pay an additional filing fee for the Immigration Service to take initial action on the petition or application within 15 to 45 days. Normal processing times without Premium Processing can be months or even years.

The final rule implements statutory changes made by the Emergency Stopgap USCIS Stabilization Act. Importantly, the final rule’s expansion of Premium Processing to Nonimmigrant Dependent Visa Applications and Employment Authorization Document Applications is a continuation of the Administration’s efforts to address long processing delays for nonimmigrant spouses to receive employment authorization, which has had a disparate effect on women. Quarles & Brady outlined the Administration’s November 2021 policy providing automatic employment authorization extensions for nonimmigrant dependent spouses and recognizing employment authorization "incident to status" for certain nonimmigrant dependent spouses.

Additionally, the expansion of Premium Processing availability for Multinational Manager EB-1C Immigrant Petitions (green card) continues the Administration’s efforts to provide greater opportunities for employers to retain top talent. Our team outlined previous policy changes which expanded opportunities for employers to attract STEM and entrepreneurial talent.

Below we provide a chart summarizing the expansion of Premium Processing and answer important questions regarding its implementation and impact.

Expansion of Premium Processing

The below chart outlines the fees and processing times for the newly announced premium processing categories.

When will premium processing be available?

The effective date of the final rule is May 31, 2022. However, the final rule gives the U.S. Citizenship and Immigration Serves (USCIS) the authority to “suspend the availability of premium processing for immigration benefit requests designated for premium processing if circumstances prevent the completion of processing of a significant number of such requests within the applicable processing timeframe.” 8 C.F.R. 106 (g)(2). In its summary of the final rule, USCIS indicated that using its discretion, it will not make Premium Processing available upon the effective date of the final rule, but will announce its availability at a later date. Practically speaking, this means USCIS will likely roll out these new options in waves from May to October.

I-539 and I-765 Premium Processing Availability

Our team does not expect that premium processing will be available in the near future for I-539 and I-765 applications.

Notably, USCIS indicated that it cannot implement premium processing for I-539 and I-765 applications until it can 1) implement e-filing for Form I-907 premium processing requests; and 2) hire and train staff to adjudicate the newly eligible applications. 87 F.R. 18227. It is anticipated that this process will be lengthy as it requires additional appropriations, implementation of new systems, and personnel additions.

I-140 Premium Processing Availability

In its announcement of the final rule, USCIS indicated that it would be implementing the expansion of Premium Processing in a phased approach, starting with I-140 petitions in the fiscal year 2022. Thus, our team anticipates that USCIS will expand premium processing for I-140 multinational manager and national interest waiver petitions between June 1, 2022 and October 1, 2022.

What opportunities will the expansion of premium processing provide to employers?

Although the costs of Premium Processing are substantial, expedited processing presents a great opportunity for employers to 1) attract and retain talent; 2) support their employees and families; and 3) foster workplace equity.

Opportunities for Nonimmigrant Dependent Spouse Work Authorization

Recently, employers have seen low selection rates for H-1B lottery registrations. In addition to the expanded opportunities for STEM OPT (outlined here), the expansion of Premium Processing to Form I-539 and I-765 applications will provide employers with multiple pathways to seek seamless work authorization for employees who are not selected in the H-1B Cap Lottery. Employees who are currently on expiring F-1 OPT work authorizations and are not selected in an H-1B cap will have an expedited path to receiving alternative work authorization through their dependent status, if eligible.

More importantly, due to long processing delays, employees currently authorized to work pursuant to their dependent status and/or EAD, the overwhelming majority of whom are women, are often unable to maintain seamless work authorization and are thus forced to take unpaid leave at great cost to the employee, their families, and the business. With the availability of premium processing, employers will be able to ensure that their employees in dependent status are able to maintain seamless work authorization. This will allow employers to foster workplace equity and support their employees and their families.

Opportunities for Multinational Managers

The expansion of Premium Processing to I-140 immigrant petitions for multinational managers will also present an opportunity for employers to offer a faster path to Legal Permanent Residency for multinational managers who are nearing the end of the 7-year limit for their L-1A visas.

Can applicants request a premium processing fee waiver?

The final rule specifically states: “[t]he fee to request premium processing may not be waived and must be paid in addition to, and in a separate remittance from, other filing fees.” Accordingly, there is no opportunity for individuals who may not be able to afford to pay the premium processing fees due to extenuating circumstances to request a fee waiver.

Conclusion

The final rule expanding Premium Processing creates a great opportunity for employers to support their employees, attract and retain talent, and foster workplace equity. However, the cost of Premium Processing is substantial; thus, employers should carefully consider supporting Premium Processing for their employees in these impacted categories. In addition, the timing is still very much uncertain on the implementation of premium processing for I-539 and I-765 application requests benefiting those who have had to leave jobs due to USCIS processing delays.

For more information on how the expansion of Premium Processing may present opportunities for your operations, please contact your local Quarles & Brady attorney or:

• Grant Sovern: (608) 283-2668 / grant.sovern@quarles.com
• Tim D'Arduini: (202) 780-2641 / timothy.darduini@quarles.com
• Lynn O'Brien: (202) 372-9530 / lynn.obrien@quarles.com
• Andrew Kuntz: (202)780-2638 / andrew.kuntz@quarles.com