Labor Immigration Law

We wrote earlier about the availability of limited I-140 premium processing filings.  It is only available to certain H-1B holders who “H-out” of their status and for whom the only way to remain on H-1B status would be a I-140 premium processing filing.  Please read our earlier article for details on this.

The USCIS has released some clarifications on the I-140 premium processing procedure.

First, not all cases of I-140s are eligible for premium processing.  Prior to the suspension of premium processing for I-140’s last Fall, only certain I-140 case types were eligible. For example, National Interest Waivers and Multinational Managers were not eligible for premium processing. Those case types are still not eligible for premium processing, even in an “H-out” situation.

Second, the I-140 premium processing is available if the beneficiary is in H-1B status in the U.S.

Finally, 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 purpose of this premium processing option was to benefit those individuals who could not qualify for a one-year extension and who needed an approved I-140 to remain in the US.  It was originally assumed that the term “6th year” could be read to mean “last year” in H-1B time. However, USCIS has said that they will be taking the term “6th year” literally. Therefore, if the beneficiary is in the 7th or 8th year of H-1B time, your premium processing request may not be accepted.

The USCIS has received comments on these three clarifications and is working to consider, and possibly, adjust the scope of the I-140 program.  However, until USCIS releases modifications of the program, the I-140 premium processing program remains somewhat limited in scope and applicability.