On July 30, 2001 the INS will begin accepting H-1B "premium processing" petitions. If a company seeks premium processing and pays an additional $1000 filing fee, the INS will review a petition and issue an approval notice, request for evidence or denial within fifteen calendar days of its receipt of the petition. This email informs you of the program, advises you on its best uses, and enables you to begin identifying possible candidates for filing on or after July 30, 2001.

The premium processing program is available for a variety of non-immigrant visa petitions including E-1, E-2, H-2A, H-3, L-1, O-1, P-1, Q-1, TN and H-1B. The program is already in effect for all of the above non-immigrant visas with the exception of H-1B. Preliminary results suggest that INS will meet its processing promise, but the system will not be truly tested until after July 30, 2001 when H-1B petitions are accepted for premium processing. If the INS is not able to process the petition within fifteen days, the Service will refund the $1000 filing fee, as well as expedite adjudication of the overdue case. While the opportunity for expedited processing offers great appeal, we encourage conservative usage because many of your H-1B candidates may not significantly benefit from the program.

Identifying Appropriate Parties for Premium Processing

Who usually will benefit from premium processing

The premium processing program may be of substantial benefit in certain situations. For example, if your company intends to hire an overseas candidate for a time-sensitive project, you should be able to bring the candidate into the United States much faster through premium processing. Similarly, if you are interested in hiring a candidate who is currently in the U.S. but not in H-1B status, the party may acquire work authorization for your company swiftly through premium processing. As a final example, you may have a present H-1B employee who travels often and needs an approved H-1B extension petition before the party returns to the U.S. Rather than waiting outside the U.S. indefinitely, the H-1B employee would be assured of an extension decision in a matter of weeks.

Who usually won't benefit from premium processing

In certain instances, candidates will not gain sufficient benefits to justify the cost of premium processing. For instance, if your company offers employment to a foreign national who already holds H-1B status with another employer, that party will be able to join your company upon receiving the H-1B filing receipt notice. Therefore, the premium processing program is unlikely to enable the foreign national to begin working with your company at a significantly earlier date. Similarly, extensions filed for existing H-1B employees of your company usually will not significantly benefit from premium processing.

The LCA Requirement May Delay the Filing of a Premium Processing H-1B Petition

Generally speaking, premium processed H-1B petitions should be filed with an approved Labor Condition Application (LCA). Otherwise, the INS will issue a request for evidence, and processing of the petition will be delayed by the amount of time it takes to receive the certified LCA. In light of processing backlogs at the Department of Labor, it may take a number of weeks before a premium processed petition can be filed with an approved LCA. Such delays will focus increased attention on the potential benefits of multi-use LCAs. Berry, Appleman & Leiden encourages companies to consider multi-use LCAs for similar positions arising in the same job site. We also suggest identifying likely candidates for H-1B premium processing now so complete H-1B petitions may be filed on July 30, 2001 and thereafter.

More Information

For a more complete description of the premium processing program, please link to our website article, "INS Launches Premium Processing Program," issued on June 1, 2001.

Please feel free to contact Berry, Appleman & Leiden with additional questions.