Expedited Processing Back On for I-140, Immigrant Petitions for Alien Workers; Visa Availability Still an Obstacle

Published: June 26, 2009

Expedited processing, or “Premium Processing,” allows for processing of certain immigration petitions in 15 calendar days or less with the payment of an additional filing fee of $1000. In the past, Premium Processing had been available for most types of I-140 immigrant worker petitions, but eventually Citizenship and Immigration Services (USCIS) discontinued the program for I-140’s for a variety of logistical reasons. Effective June 29, 2009, however, Premium Processing for most I-140 petitions is back on again.

Who files an I-140 petition?
In most cases, it is a petition filed by an employer on behalf of a foreign worker, whether in the U.S. or abroad, to facilitate the worker’s U.S. permanent residence. Usually the I-140 petition must be supported by an approved labor certification application (commonly known as a “PERM application” these days) wherein the employer has documented the unavailability of U.S. workers and the U.S. Department of Labor has “certified” the results. Most PERM applications are filed on behalf of workers in the Employment-Based Third Preference, (EB-3), including certain professionals, skilled workers, and unskilled workers.

I-140 petitions that do not require approved labor certifications include petitions:

  • on behalf of Registered Nurses and Physical Therapists (EB-3, “Schedule A”),
  • on behalf of aliens of “extraordinary ability” (EB-1, with “self-petitions” accepted), and
  • on behalf of “outstanding researchers and professors” (EB-1).

Premium Processing for I-140 petitions in all of the above categories has been reinstated. Premium Processing has NOT been reinstated for I-140 petitions for:

a) certain advanced degreed or “exceptional ability” foreign nationals performing work in the “national interest,” as well as
b) managers and executives of multinational companies are being transferred to the U.S.

Practically speaking, Premium Processing will only be beneficial to employers and employees qualifying under employment-based visa categories with visa availability, such as EB-1 or EB-2 classifications (which include advanced-degree professionals, aliens of “extraordinary ability,” “outstanding” researchers/professors, with the exception of EB-2 workers from China and India). That is because no matter how quickly the I-140 petition is processed, it becomes a “hurry up and wait” scenario for workers in the EB-3 category (including RN’s and PT’s), where the employment visa line has become prohibitive. As a  result, no matter how fast the I-140 is approved, the worker still ends up waiting three, four or even five-plus years for immigrant visa availability and the issuance of the permanent resident card.

However, with each new month comes a new Visa Bulletin from the U.S. Department of State, and visa availability in all employment and family based preferences is updated. So, at the start of any given month, particularly October 1 – when the federal government’s fiscal year begins – significant progress in visa availability for any of the preference categories is possible.

Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois