Emergency Stopgap USCIS Stabilization Act

Updates

The Spring, 2021 regulatory agenda includes this item: DHS/USCIS. RIN: 1615-AC73. Rulemaking Stage: Final Action. Target Date: 09/00/2021. Title: Adjustment to Premium Processing. Abstract: "The Continuing Appropriations Act, 2021 and Other Extensions Act, signed into law on Oct. 1, 2020, contained the Emergency Stopgap USCIS Stabilization Act which set new fees for benefit requests currently eligible for premium processing and expanded USCIS authority to establish and collect additional premium processing fees and to use those additional funds for expanded purposes. Through this rulemaking, DHS will set those fees established by statute at 8 U.S.C. 1356(u)(3)(A) and establish new benefit requests eligible for premium processing and the associated fees made available by 8 U.S.C. 1356(u)(3)(B), but limited to those conditions and eligibility requirements set forth by Section 4102(b)(1) of the Emergency Stopgap USCIS Stabilization Act, Pub. L. No. 116-159, (2020)."

NAFSA Signs on to AILA Coalition Letter. On March 1, 2021, NAFSA joined AILA and 15 other organizations on a letter to USCIS urging the agency to implement the Emergency Stopgap USCIS Stabilization Act provisions that authorize USCIS to expand premium processing to additional form types, including Form I-539 and Form I-765. The letter provides recommendations on how USCIS can implement these provisions "to ensure the agency remains solvent while efficiently and effectively adjudicating all immigration benefit applications and petitions."

Effective October 19, 2020 the premium processing fee is $2,500 for Form I-140 and most Form I-129 premium processing requests, as authorized by the Emergency Stopgap USCIS Stabilization Act that was signed into law on October 1, 2020. Prior to that, the premium processing fee had been set at $1,440 since December 2, 2019 by 84 FR 58303. The premium processing fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status increased from $1,440 to $1,500. Any Form I-907 postmarked on or after October 19, 2020 must include the new fee amount. If USCIS receives a Form I-907 postmarked on or after October 19, 2020 with the incorrect filing fee, it will reject the Form I-907 and return the filing fee. "For filings sent by commercial courier (such as UPS, FedEx and DHL), the postmark date is the date reflected on the courier receipt."


Included in Division D, Title I of the Continuing Appropriations Act, 2021 and Other Extensions Act signed into law on October 1, 2020, the Emergency Stopgap USCIS Stabilization Act amended the USCIS premium processing provision at INA Section 286(u) [8 U.S.C. 1356(u)] by:

  1. Raising the premium processing fee (effective October 19, 2020);
  2. Lengthening the premium processing time frame from 15 to 30 days, or to 45 days for certain petitions (not yet effective)
  3. Removing language that had previously limited premium processing to certain employment-based I-129 and I-140 petitions, and authorizing DHS to expand the categories of eligible application types (not yet effective) to include:
  • Employment-based nonimmigrant petitions (Form I-129) and associated applications for dependents of the beneficiaries of such petitions;
  • Employment-based immigrant petitions (Form I-140) filed by or on behalf of individuals in all EB-1, EB-2, and EB-3 employment-based immigrant categories, including EB-1 multinational managers and EB-2 national interest waiver filings and filings for physicians working in a physician shortage area or veterans facility;
  • Applications to change or extend nonimmigrant status (filed on Form I-539);
  • Applications for employment authorization (filed on Form I-765); and
  • "any other immigration benefit type that the Secretary deems appropriate for premium processing."

Any changes to premium processing authorized by the statute will have to be properly implemented by DHS. Filers should verify with USCIS the premium processing parameters for the particular application or petition being filed, before requesting premium processing service. On October 16, 2020, USCIS announced that effective October 19, 2020, it raised the premium processing fee for Form I-140 and most I-129 premium processing filings from $1,440 to $2,500. Any Form I-907 postmarked on or after October 19, 2020 must include the new fee amounts. The news release also confirms that although the Act authorizes the expansion of premium processing to new categories, "USCIS is not yet taking that action." The full notice reads:

Premium Processing Fee Increase Effective Oct. 19, 2020

Release Date

U.S. Citizenship and Immigration Services (USCIS) today announced it will increase fees for premium processing, effective Oct. 19, as required by the Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, signed into law on Oct. 1. The USCIS premium processing service allows petitioners to pay an additional filing fee to expedite the adjudication of certain forms, generally within 15 days. The Act included the Emergency Stopgap USCIS Stabilization Act, which requires USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes.

Pub. L. No. 116-159 increases the fee for Form I-907, Request for Premium Processing, from $1,440 to $2,500, for all filings except those from petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting H-2B or R-1 nonimmigrant status. The premium processing fee for petitioners filing Form I-129 requesting H-2B or R-1 nonimmigrant status is increasing from $1,440 to $1,500.

Any Form I-907 postmarked on or after Oct. 19 must include the new fee amount. If USCIS receives a Form I-907 postmarked on or after Oct. 19 with the incorrect filing fee, we will reject the Form I-907 and return the filing fee. For filings sent by commercial courier (such as UPS, FedEx and DHL), the postmark date is the date reflected on the courier receipt.

Pub. L. No. 116-159 also gives USCIS the ability to expand premium processing to additional forms and benefit requests, but USCIS is not yet taking that action. Any expansion of premium processing to other forms will be implemented as provided in the legislation.

Currently, premium processing is available only to certain employment-based I-129 and I-140 filings. For premium processing categories already available before the Emergency Stopgap USCIS Stabilization Act, section 4102(a) of the Act amended INA 286(u)(3) to raise the premium processing fee to $2,500, except for H-2B (temporary nonagricultural labor or services) or R (religious worker) filings, which is set at $1,500. The Act states that the fee for applications added to premium processing eligibility after August 1, 2020, though, must "be established by regulation, which shall include a detailed methodology supporting the proposed premium fee amount." That would normally mean that it would be a while before premium processing becomes available for new categories like the I-539 and I-765. However, section 4102(b)(1) of the Act allows USCIS to set a fee for the new categories without going through the standard regulatory process as long as the fee conforms to these conditions:

A. For a petition for classification under INA 203(b)(1)(C) (Certain multinational executives and managers) or EB-2 petitions involving a national interest waiver or waiver for physicians working in shortage areas or veterans facilities under INA 203(b)(2)(B) "the fee is set at an amount not greater than $2,500 and the required processing timeframe is not greater than 45 days."

B. For an application for change of status to F, J, or M status, "the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days."

C. For an application for change of status to or extension of stay as a dependent of an E, H, L, O, P, or R nonimmigrant "the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days."

D. For an application for employment authorization, "the fee is set at an amount not greater than $1,500 and the required processing timeframe is not greater than 30 days."

For now, USCIS's October 16, 2020 news release news release confirms that although the Act authorizes the expansion of premium processing to new categories, "USCIS is not yet taking that action."

As is the case for the current premium processing program, the required processing timeframe for these applications and petitions would not begin "until the date that all prerequisites for adjudication are received by the Secretary of Homeland Security," i.e., until USCIS receives a properly completed application or petition with the correct fee and all required initial evidence.

Importantly, section 4102 of the Act requires DHS to "develop and implement processes to ensure that the availability of premium processing, or its expansion to additional immigration benefit requests, does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated."

Besides modifying the premium processing program, section 4103 of the Emergency Stopgap USCIS Stabilization Act also requires DHS, within 180 days of enactment, to provide the appropriate Congressional Committees with a detailed 5-year plan to:

“(1) Establish electronic filing procedures for all applications and petitions for immigration benefits.

(2) Accept electronic payment of fees at all filing locations.

(3) Issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically.

(4) Improve processing times for all immigration and naturalization benefit requests.”