USCIS to Expand Premium Processing Program, Increase Fee Rates

On October 1, 2020, President Donald Trump signed into law a stopgap spending measure to fund the U.S. government through December 11, 2020. The spending measure includes a provision titled “Emergency Stopgap USCIS Stabilization Act,” which authorizes U.S. Citizenship and Immigration Services (USCIS) to expand the premium processing program and to increase program fees.

Although the spending measure takes effect immediately, it is likely that USCIS will need several weeks before the agency can implement the necessary internal changes to begin accepting premium processing requests for the expanded categories.

Background

The Emergency Stopgap USCIS Stabilization Act addresses the massive budget shortfall experienced by USCIS in fiscal year 2020, which caused an agency-wide disruption in operations.

On July 31, 2020, the Department of Homeland Security (DHS) published a final rule to adjust fees for specific immigration and naturalization benefit requests to recover its cost of services. However, this rule, which was scheduled to go into effect on October 2, 2020, was blocked when a federal district court judge for the Northern District of California issued a nationwide preliminary injunction. Although the agency was ultimately able to avoid massive furloughs—originally estimated to impact up to 13,000 employees—due to increased revenue projections and various cost-cutting measures, the ability of USCIS to continue ongoing operations remained in question.

Adjustments to Fees and Premium Processing

The following is a list of key changes included in the stopgap measure:

• USCIS will increase the premium processing fee for all benefit requests that are already eligible for premium processing from $1,440 to $2,500 (with the exception of H-2B and R-1 petitions).
• The spending measure authorizes premium processing for the following immigration benefit types (i.e., expanded categories):
  • Form I-140 petitions on behalf of EB-1 multinational managers and executives and EB-2 national interest waiver cases
  • Form I-539 applications to change or extend status by dependents of certain visa beneficiaries
  • Form I-765 applications for employment authorization
  • Applications for change of status to F, J, or M visa status
• USCIS may suspend premium processing “only if circumstances prevent the completion of processing of a significant number of such requests within the required period.”
• The measure also establishes maximum premium processing fees and timelines for certain newly eligible visa case types as provided in the table below.

Visa/Immigration Benefit	Maximum Fee Permitted	Maximum Processing Timeline
EB-1 – Multinational Executives and Managers EB-2 – National Interest Waiver Cases	$2,500	45 days
Change of Status to: F, J, and M	$1,750	30 days
Change of Status to/Extensions of Status for Dependents Seeking: E, H, L, O, P, or R	$1,750	30 days
Employment Authorization Documents (EAD)	$1,500	30 days

Analysis and Impact

The Emergency Stopgap USCIS Stabilization Act substantially expands the immigration benefits that are eligible for premium processing services. As processing times for most immigration benefits have continued to expand, the option to request expedited premium processing services could help to avoid common issues associated with lengthy USCIS adjudications. In particular, renewals of certain employment authorization documents (EADs), such as H-4 and L-2 spousal EAD work cards, are not currently afforded work-authorization grace periods if an application for the new EAD is not approved by the expiration of the current EAD work card. The expansion of the premium processing service to include adjudications of EAD work cards may help to minimize the risks of lapses in work authorization.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the implementation of the expanded premium processing services and will post updates on our Immigration blog as additional information becomes available.