INS Begins Premium Processing

• Starting June 1, 2001, for an additional $1000 fee, the INS is providing an expedited review of most non-immigrant, employment-based visa petitions. This is based on legislation passed last December (P.L. 106-553, the District of Columbia Appropriations Act 2001). More specifically, the INS guarantees that it will either issue an approval notice, an intent to deny, a request for evidence or a notice of investigation within 15 calendar days of receiving an applicable petition. Consequently, while this premium does not guarantee an approval by the INS, tremendous benefits are still received by both the sponsoring entity temporarily employing aliens and the INS.
• At first, INS premium processed only E, L, O, P, Q, H-3, H-2A and H-2B nonimmigrant cases. As of July 30, 2001, it is premium processing H-1B, TN and R cases.

Other Significant Points on Premium Processing:

• If the INS fails to meet its new 15-day guarantee, it will refund the $1000 fee to the company and continue to process the petition as quickly as possible.
• Additionally, if the application of a family member who is entitled to derivative benefits, files an application concurrently with the alien’s Premium Processing petition, the Service will process the relative’s application in 15 calendar days without requiring an additional fee for the relative’s application.
• Moreover, an alien cannot apply for premium processing himself; rather, only the alien’s employer/petitioner or lawyer/representative is eligible to qualify for premium processing.
• No changes dealing with the expedited processing of immigrant petitions are expected in the future.

Benefits:

• In accordance with the terms of the new law, the INS promises to apply the money collected from these fees towards infrastructure improvements in the adjudication of these petitions, the modernization of INS Service Centers, and to other customer service needs. The agency also hopes to hire roughly 450 more employees to help process all kinds of visa petitions, in an effort to help reduce the processing backlog of certain visa petitions.
• However, President Bush has specified that, in his FY02 Budget, $20 million of the anticipated $80 million annual revenue which this program is expected to generate, should go to improving those INS services used by family members, rather than employers. It is noteworthy, too, that the INS is unable to predict at this point how this new policy could influence the current Department of State operations governing consular affairs.
• The beginning of premium processing does signal that lawyers should be better able to rely on the INS’ meeting the demands of the fast-paced market. It provides a substantial decrease in the average wait period for a non-immigrant visa, from 60-90 days down to 15 days.
• The INS also benefits from the added resources that are expected to come from the revenue generated by this new program.
• With additional employees and increased revenue, they should be able to respond quicker to case inquiries and process applications more efficiently once more bodies have been added, and their equipment is upgraded.

Drawbacks:

Despite the benefits of its implementation, this program has been met with substantial criticism. Among many points, critics note that:

• This new service creates an elitist system that will divide immigrants into two monetary categories: those who can afford this new fee and those who cannot. Many non-profit organizations share this fear because the $1000 processing fee is more than they can afford.
• Rather than implementing this new policy, Congress should allocate more money, internal to INS programs, to immigrant services, while providing less to the border patrol.

The Process:

• Thus far, the new INS Form I-907, Request for Premium Processing Service Form, is the only additional form required for those interested in participating in the Premium Processing Program. This form can be filed either alone or concurrently with the petitioner’s I-129 and contains, on its back, special phone numbers, mailing and email addresses and fax numbers which are designated solely for questions pertaining to the status of premium processing cases.
• If the I-129 and I-907 are filed simultaneously, they should be submitted to the designated Premium Processing address listed on the back of the I-907 form. However, if they are sent separately, with the I-907 following shortly after the I-129, then the I-907, alone, should be sent to the Premium Processing address designated on the back of that form.
• If sending these forms separately, the INS also recommends that the petitioner try to include a copy of the I-797, Notice of Action, which proves that the INS has already received the non-immigrant visa petition.
• The processing fee to be included in the Premium Processing application must be separate from the filing fee required for the nonimmigrant visa petition. Therefore, this $1000 fee is additional to the $110 processing fee required of all nonimmigrant petitions, other than those filing an H-1B petition (for which the processing fee is higher).

The Availability of Expedited Process:

• If you are unable to afford Premium Processing, the regular (i.e. without premium processing) expedited process is still available. Though it does not require a fee, expedited process operates on a timeline similar to that of Premium Processing. However, this older form of processing requires that the petitioner file his application based on one of the following criteria: (1) severe financial loss to company/individual; (2) an extreme emergent situation; (3) humanitarian situation; (4) a Department of Defense or national interest situation; or (5) an INS error.