Starting Monday certain H-1Bs who are have, or soon will have, maxed out their six-year time limit can file an I-140 with premium processing, USCIS announced.

Beginning March 2, 2009, USCIS said it will accept Form I-907 (Request for Premium Processing Service) for immigrant worker petitions filed on behalf of foreign nationals who, as of the date of filing the Form I-907:

  • Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
  • Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing; 
  • Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
  •  Are ineligible to extend their H-1B status under section 106(a) of AC21.

 

USCIS has clarified for AILA that eligibility includes petitions filed for foreign nationals who are abroad, or who are currently in a non-immigrant status other than H-1B, provided that the foreign national, as of the date of filing the Form I-907, meets the above criteria.

Section 104(c) of AC21 permits foreign employees to extend their stay in H-1B non-immigrant status in increments of up to three years if they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. For example, all Employment-Based Third Preference categories are back-logged for years, and Employment-Based Second Preference is backlogged for Indian and Chinese foreign nationals.

Section 106(a) of AC21 permits applicants to extend their stay in H-1B non-immigrant status in increments of up to one year if the Form I-140 petition or underlying labor certification was filed at least 365 days ago.

In other words, if you H-1B time is up or is almost up and you have an approved labor certification filed less than 365 days ago and are ready to file an I-140, or do not need a labor certification to file the I-140, and your visa category is back-logged, you can benefit from the expanded premium processing service.

How is this “expanded” service different from the premium processing re-instatement last summer?

For the first expansion announced in June 2008, you had to be in H-1B status and within 60 days of the end of your six years of H-1B time. As of Monday, you are now eligible for premium processing if you are no longer in H-1B status and your six years have ended. For example, if you used up your H-1B time and switched to another non-immigrant status or you left the United States, you should be eligible for premium processing of your I-140.