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EB-2 Premium Processing for EB-2 National Interest Waiver

On May 24, 2022, USCIS announced that premium processing will be made available for certain Form I-140 petitions (employment-based green card applications), as well as Form I-539 (application to extend/change nonimmigrant status) and Form I-765 (employment authorization document application) in phases over the course of 2022.

When did this become available?

USCIS announced on May 24, 2022 that Premium Processing will become available for certain EB-2 National Interest Waiver (NIW) petitions beginning July 1, 2022. 

How do I know I’m eligible for premium processing?

To qualify for Premium Processing at this time, you must have filed an EB-2 NIW on or before August 1, 2021. 

We anticipate that USCIS will make additional EB-2 NIWs eligible for Premium Processing in the future. For now, USCIS is choosing to provide this upgraded service to older cases first. We will share updates on additional eligibility as we receive them from USCIS.

What are the advantages of upgrading my case to premium processing?

The main advantage of Premium Processing is that your EB-2 NIW petition will no longer be stuck with standard processing times of 14.5-20.5 months. 

What does the upgrade guarantee? 

Premium Processing guarantees that USCIS will take action on your petition (typically either by issuing a decision or a Request for Evidence [RFE]) within 45 days of the date it receives your Form I-907, Request for Premium Processing. If for some reason action is not taken within the 45 days we can request a refund of the Premium Processing fee. 

What are the risks to upgrading my case to premium processing?

The main risk involved in seeking Premium Processing is that it does not guarantee a favorable outcome. While USCIS must take action on your case within the 45-day window, this does not mean that USCIS must approve your case. Instead, USCIS can issue an Approval Notice, an RFE, and in very rare instances, a Notice of Intent to Deny (NOID). 

What if I get an RFE?

First, Legalpad will review the RFE and develop a response strategy. Next, we will meet with you to discuss the plan of action and work together to develop a response. 

Please note that USCIS has hired more staff and reallocated existing staff to process the EB-2 NIWs in order to accommodate the expected increase in Premium Processing cases. As a result, we may see more RFEs than normal, as their staff learn the nuances of this petition. However, do not be alarmed! USCIS must still fairly and properly adjudicate your RFE response. There is no additional fee associated with the preparation and processing of your RFE response. 

With regard to timing, USCIS typically grants a response deadline of 60 calendar days from the date of the RFE letter. However, with the added complications of the COVID-19 pandemic, USCIS is currently automatically providing a 60-day extension to the standard deadline. 

It is worth noting that the 45-day Premium Processing clock restarts when USCIS receives your RFE response. This means that USCIS will have an additional 45 days to review the RFE response from the date of its receipt.  

What if my case is denied?

If your case is denied, Legalpad will work with you to evaluate your options and plan your next steps. 

Can I apply again?

Yes, you can always apply again. There is no limit to the number of times you submit an EB-2 NIW petition. Of course, however, it is always a good idea to utilize the information in the Denial Decision to build a stronger petition.

What if I have an I-485 “green card” application pending? 

If your EB-2 NIW petition is denied, it is very likely that your I-485 “green card” application will also be denied automatically. The same is true for your Employment Authorization Document (work permission) and your Advance Parole (travel permission). 

If you have underlying valid nonimmigrant status (with work permission), you can remain and work in the United States until that status expires. However, if you do not have underlying valid nonimmigrant status you will need to quickly determine your other options by discussing them with your Legalpad team. 

If I would like to upgrade my case to premium processing, what are my next steps?

USCIS charges a Premium Processing fee of $2,500, and Legalpad charges $350.00 in service fees. 

If your EB-2 NIW petition was filed on or before June 1, 2021 and you are interested in upgrading your case to Premium Processing, please reach out to your Legalpad team to begin the process. While we anticipate a high volume of requests, we are taking all necessary steps to make sure we can submit these requests as expeditiously as possible. 

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