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The USCIS just announced that starting June 16, it will allow
certain I-140 immigrant visa petitions to be accepted by its premium
processing units. The expedited processing will allow an I-140 to be
approved in 15 calendar days or less. The USCIS is limiting the
I-140 premium processing to H-1B workers who are nearing the end of
their sixth year in H-1B status.
Expedited processing will be available to those
whose sixth year of H-1B status will expire 60 days from filing the
I-140 petition. They must also be able to extend H status under
section 104(c) of the American Competitiveness in the Twenty-first
Century Act of 2000 AC21 is an immigration law passed by Congress
with provisions allowing H-1B workers to extend their status beyond
their six-year cap. It provides two ways to extend an H-1B.
The first allows for one-year extensions beyond
the six years if certain conditions are met. The conditions are that
either a labor certification, or a combination of labor
certification and an I-140 have been pending for over 1 year at the
time the extension is filed.
In order to extend under this provision,
employers must have at least filed a labor certification on or
before the worker’s fifth year in H-1B status.
Section 104(c) under AC21 provides a
second way to extend H-1B status beyond the sixth year. This
provision only requires that the worker’s I-140 is approved and he
is waiting for his priority date to become current. H-1B status can
then be extended for an additional 3 years.
An example illustrates how the provisions
work. Holly is in H-1B status. Her employer filed a PERM application
for her after her fifth year of H-1B started. It was approved very
quickly and the I-140 was also filed in Holly’s fifth year.
The employer would like to extend Holly’s H-1B
for a seventh year or more in order to avoid a disruption in
services. No extension can be granted under the first provision of
AC21 because the PERM and the I-140 were filed too late. But, if the
I-140 is approved before Holly’s sixth year is reached, a
three-year extension may be filed under AC21’s second provision.
An I-140 approval is therefore a critical
condition for many H-1B workers who need to extend their status
beyond six years.
The return of premium processing for
I-140s is welcome relief and news to many H-1B employers and their
workers. The USCIS’s normal I-140 processing time is now
approximately 1.5 years.
H-1B workers in situations similar to Holly’s
from the example, would have no way to extend their H-1B status
given the normal processing times. They face having to depart the US
for at least one year before they may start the H-1B process anew.
This includes participating in the luck of the H-1B visa number
lottery. Jobs would be lost. Employers would lose workers for at
least a year, and careers and projects would be sidetracked or
derailed. The return to expedite processing will help eliminate this
for most in this situation.
The USCIS’s recent action recognizes
that it is in a position to avoid a disruption of the valuable
contributions and services H-1B workers provide. It is providing a
much needed mechanism to allow for extensions of H-1B status. This
also helps those who already have I-140 petitions pending before the
USCIS, but which were not filed in time to qualify for the one-year
H-1B extensions. These petitions can be upgraded to expedite
processing in order to obtain the I-140 approval needed to extend
status under the second provision of AC21.
Six years of H-1B status goes by very
quickly. Employers and H-1B workers who are fast approaching the
fifth year should move quickly to file PERM labor certifications.
Even if the PERM is not filed until after the fifth year, there is
still a chance the H-1B can be extended. Filings should not be put
off until the last minute because the USCIS may once again remove
I-140s from the expedite processing queue.
Everyone should also keep in mind that the
Department of Labor’s processing times on PERM applications has
slowed down from a few weeks to an average of six months. This means
PERM applications must be filed as soon as possible in order to
preserve a chance at extending H-1Bs beyond six . It was almost one
year ago when the number of I-140s filed forced the USCIS to pull
the plug on premium processing. This is a welcome start to the
return of premium processing of I-140s. We hope that the door will
soon open wider to include other categories of I-140 petitions.
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Author’s Note: The analysis and
suggestions offered in this column do not create a lawyer-client
relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case
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