Alerts and Updates
Recent Developments in Immigration Law
May 2006
Premium Processing System
On May 23, 2006, USCIS published in the Federal Register a significant change to the Premium Processing system, which is offered to expedite the processing of certain petitions. The Premium Processing system has been widely used in conjunction with I-129 Nonimmigrant Petitions, including petitions for H-1B status. For a $1,000 premium processing fee, USCIS will adjudicate petitions or request additional evidence within 15 calendar days of receipt of the petition, which represents a considerably reduced waiting time.
USCIS will begin to allow premium processing for the following additional types of cases:
- I-140 Immigrant Petitions (most types) including the following classifications:
- Aliens of extraordinary ability (EB1)
- Outstanding professors and researchers (EB1)
- Multinational executives and managers (EB1)
- Advanced degree professionals (not available for national interest waiver cases) (EB2)
- Professionals (EB3)
- Skilled Workers (EB3)
- Other workers (EB3)
- I-539 Applications for the following classifications:
- Business visitors (B-1)
- Exchange visitors (J-1, J-2), including professors, scholars, trainees, teachers, specialists, alien physicians, international visitors, government visitors, camp counselors, au pairs and summer work travel.
- Dependents of most employment-based nonimmigrant visa holders, including E-2, H-4, L-2, TD and O-3, among others. Note that if I-539 applications are concurrently filed with an I-129 petition (e.g., an H-4 dependent extension filed concurrently with an H-1B principal extension), as a courtesy USCIS will normally adjudicate or request additional information on the I-539 within the 15-day period based on the $1,000 fee for the I-129 petition. USCIS does not guarantee, however, that such concurrently filed I-539s will receive expedited treatment.
- I-765 Applications for *Renewal* of Employment Authorization Document where an Adjustment of Status Application is pending supported by an Employment-Based Immigrant Visa Petition.
USCIS also changed its policy regarding the concurrent filings of Form I-765 with Form I-539. Traditionally, a foreign national in nonimmigrant status was not eligible to file Form I-765 to request employment authorization until the underlying petition requesting a change of status or extension of status was approved. As a courtesy, USCIS will permit certain classifications of nonimmigrant to concurrently file the I-539 along with the I-765, as long as the I-539 is filed using the Premium Processing system. These classifications include B-1 personal or domestic servants; B-1 airline employees; E-1 or E-2 dependent spouses; and L-2 spouses. Note that the premium processing service applies only to the I-539; therefore, USCIS does not guarantee that the concurrently filed Form I-765 will be processed within the same 15 calendar days.
Although the Notice in the Federal Register is effective as of May 23, 2006, it has not yet been determined when USCIS will begin accepting the above petitions on a premium processing basis. Information regarding availability of premium processing will be posted on its Web page at www.uscis.gov.
H-1B Numbers Going Fast
As of May 23, 2006, USCIS announced that it has approved or has in the pipeline approximately 70% of the quota under the 65,000 limit. At the current pace, the quota may be exhausted as early as June 9. For H-1B advanced degree exemption, USCIS announced it has approved or has in the pipeline about 25% of the total 20,000 exempted numbers. At the current pace, this quota could be exhausted by the end of the summer or early fall 2006. Below is the chart published by USCIS:
| Cap | Beneficiaries Approved | Beneficiaries Pending | Beneficiary Target 1 | Total | Date of Last Count | |
| H-1B | 58,200 2 | 7,396 | 37,754 | 61,000 | 45,150 | 5/23/2006 |
| H-1B Advance Degree Exemption | 20,000 | 1,611 | 3,944 | 21,000 | 5,555 | 5/23/2006 |
| H-1B (FY 06) | 58,200 | ------ | ------ | ------ | Cap Reached | 8/10/2005 |
| H-1B Advance Degree Exemption (FY 06) | 20,000 | ------ | ------ | ------ | Cap Reached | 1/17/2006 |
- Refers to the estimated numbers of beneficiary applications needed to reach the cap, with an allowance for denials and revocations. Each target is subject to revision later in the cap cycle as more petitions are processed.
- 6,800 are set aside for the H-1B1 program under terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreement. Unused numbers in this pool can first be made available for general use on October 1, 2006, the start of FY 2007.
H-1B1
An H-1B1 is a national of Chile or Singapore coming to the Unites States to work temporarily in a specialty occupation. The law defines specialty occupation as a job that requires a bachelor's degree or higher. The beneficiary must have a bachelor's degree relating to the job offer. Through January 2006, 179 H-1B1s counted against FY06 cap. The combined statutory limit is 6,800 per year.
For Further Information
For more information about this Alert, please contact one of the immigration attorneys of our Employment & Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
