DOCUMENT NUMBER: FR 16-06

FEDERAL REGISTER CITE: 71 FR 29662

DATE OF PUBLICATION: May 23, 2006

BILLING CODE: 4410-10

DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

[CIS No. 2350-05; DHS Docket No. USCIS-2005-0039]

RIN 1615-ZA20

Notice of Designation of Certain Employment-Based Petitions and Applications as Eligible for Premium Processing Service

AGENCY: U.S. Citizenship and Immigration Services, Department of Homeland Security.

ACTION: Notice.

SUMMARY: This Notice designates the following forms as eligible for Premium Processing Service: Form I-140 “Immigrant Petition for Alien Worker,”Form I-539 “Application to Extend/Change Status,” and Form I-765 “Application for Employment Authorization.” Under Premium Processing Service, U.S. Citizenship and Immigration Services guarantees that it will process designated petitions and applications, and classifications within these petitions and applications that U.S. Citizenship and Immigration Services makes availa ble for the service, within 15 calendar days for an additional processing fee of $1,000.

DATES: This Notice is effective May 23, 2006.

FOR FURTHER INFORMATION CONTACT: Kristina Carty-Pratt, Adjudications Officer, Business and Trade, Office of Programs and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20001, telephone (202) 272-8400.

SUPPLEMENTARY INFORMATION:

I. Background

    U.S. Citizenship and Immigration Services (USCIS) offers expedited processing of certain employment-based petitions and applications (hereinafter collectively referred to as “Forms”) through its Premium Processing Service. For an additional processing fee of $1,000, Premium Processing Service guarantees that USCIS will process designated Forms, and designated classifications within these Forms, within 15 calendar days of receiving a Request for Premium Processing Service, Form I-907. See Immigration and Nat ionality Act (INA) § 286(u), 8 U.S.C. 1356(u); 8 CFR 103.2(f). USCIS designates Forms and classifications within these Forms as eligible for Premium Processing Service through notices published in the Federal Register . 8 CFR 103.2(f)(2).

    USCIS, by an interim rule published elsewhere in this issue of the Federal Register , has revised its procedures for designating Forms and classifications for Premium Processing Service. Pursuant to those revised procedures, USCIS is issuing this Notice to designate the following Forms and certain classifications within these Forms as eligible for Premium Processing Service: Form I-140 “Immigrant Petition for Alien Worker,” Form I-539 “Application to Extend/Change Nonimmigrant Status,” and Form I-765 “Application for Employment Authorization.” The designated classifications within these Fo rms that will be eligible for Premium Processing Service are described under the “Form Designations” heading of this

SUPPLEMENTARY INFORMATION.

    USCIS will specify the dates on which the availability of Premium Processing Service for these designations begins and ends, and any other applicable conditions of availability for premium processing, via the USCIS Web site at http://www.uscis.gov .

II. Designations

A. Form I-140

    Form I-140 is a petition filed with USCIS as the first step to obtaining permanent resident status based on employment. Form I-140 is filed by or on behalf of aliens seeking status within certain employment-based immigrant visa classifications created by section 203(b) of INA, 8 U.S.C. 1153(b). USCIS approval of a Form I-140 establishes that the alien seeking permanent resident status and, if applicable, his or her sponsoring employer, meet the qualification requirements. USCIS is designating the following classifications within Form I-140 as eligible for Premium Processing Service:

Designated classifications within Form I-140	Corresponding employment- based immigrant visa Classifications 1	Statutory description of immigrant visa classifications
Aliens of extraordinary ability.	EB-1	INA 203(b)(1)(A),8 U.S.C. 1153(b)(1)(A).
Outstanding professors and researchers.	EB-1	INA 203(b)(1)(B),8. U.S.C1153(b)(1)(B).
Multinational executives and managers.	EB-1	INA 203(b)(1)(C),8 U.S.C. 1153(b)(1)(C).
Members of professions with advanced degrees or exceptional ability not seeking a National Interest Waiver.	EB-2	INA 203 (b) (2) (A), 8 U.S.C. 1153(b)(2)(A).
Skilled workers	EB-3	INA 203 (b) (3) (A) (I), 8 U.S.C. 1153(b)(3)(A)(i).
Professionals	EB-3	INA 203 (b) (3) (A) (ii), 8 U.S.C. 1153(b)(3)(A)(ii).
Workers other than skilled workers and professionals.	EB-3	INA 203 (b) (3) (A) (iii), 8 U.S.C 1153(b)(3)(A)(iii).

    USCIS is not designating EB-2 National Interest Waiver petitions as eligible for Premium Processing Service. See INA § 203(b)(2)(B), 8 U.S.C. 1153(b)(2)(B); 8 CFR 204.5(k)(4)(ii). These petitions are very complex and, therefore, require more than 15 calendar days to adjudicate.

B. Form I-539

    Form I-539 is an application filed by aliens in the United States who are applying for an extension of stay in their current nonimmigrant status or for a change of nonimmigrant status. See 8 CFR 214.1(c)(2) (extensions of stay); 8 CFR 248.3(b) (change in nonimmigrant status). Depending on the status requested, Form I-539 may be filed by a “principal” alien or by a “dependent” of a principal alien. USCIS uses the term “principal” alien to refer to an alien seeking to obtain status in the United States based upon his or her eligibility for a particular visa classification. USCIS uses the term “dependent” to refer to an alien seeking to obtain status in the United States as a close relative, usually a spouse or child, of a “principal” alien. See INA § 101(a)(15), 8 U.S.C. 1101(a)(15).

    USCIS is designating the Form I-539 for use in changing to or extending status in the following classifications within Form I-539 as eligible for Premium Processing Service:

Designated classification within Form I-539	Corresponding nonimmigrant visa classification . 2	Statutory description of nonimmigrant visa Classification.
Business visitors who are personal or domestic servants or foreign airline employees eligible for employment authorization pursuant to 8 CFR 274a.12(c)(17).	B-1	INA 101(a) (15) (B) (i), 8U.S.C.1101(a)(15)(B)(i). 8 CFR 274a.12(c)(17).
Exchange visitors who are professors, scholars, trainees, teachers, specialists, alien physicians, international visitors, government visitors, camp counselors, au pairs, and summer work travel (Applicable to those changing status only. Extensions of stay are requested through the Department of State.)	J-1	INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J).
Dependents of designated J-1 exchange visitors (Applicable to those changing status only. Extensions of stay are requested through the Department of State.)	J-2	INA 101(a) (15) (J), 8 U.S.C. 1101(a)(15)(J).
Dependents of E-1 treaty traders.	E-1	INA 101(a) (15) (E) (i), 8 U.S.C. 1101(a) (15) (E) (i).
Dependents of E-2 treaty investors.	E-2	INA 101(a) (15) (E) (ii), 8 U.S.C. 101(a) (15) (E) (ii).
Dependents of H-1B specialty occupation workers, H-2B temporary skilled or unskilled workers, or H-3 trainee or special education trainee program workers.	H-4	INA 101(a) (15) (H), 8 U.S.C. 1101(a)(15)(H).
Dependents of principal L-1 intracompany transferees (managers or executives (L-1A) or aliens with specialized knowledge (L-1B)).	L-2	INA 101(a) (15) (L), 8 U.S.C. 1101(a) (15) (L).
Dependents of O-1 aliens with extraordinary ability in the arts, sciences, business, education or athletics, or O-2 essential support aliens.	O-3	INA 101(a)(15)(O)(iii), 8 U.S.C. 1101(a)(15)(O)(iii).
Dependents of P-1 internationally recognized athletes or members of an internationally recognized entertainment group, P-2 artists or entertainers in a reciprocal exchange program, P-3 artists or entertainers in a program which is culturally unique, or any P- 1, P-2, or P-3 essential support alien.	P-4	INA 101(a) (15) (P) (iv), 8 U.S.C. 1101(a) (15) (P) (iv).
Dependents of R-1 temporary workers in a religious occupation.	R-2	INA 101(a) (15) (R), 8 U.S.C. 1101(a) (15) (R).
Dependents of TN nonimmigrants pursuant to the North American Free Trade Agreement (NAFTA).	TD	INA 214(e)(2), 8 U.S.C. 1184(e)(2).

    The above classifications all relate to aliens who are eligible for employment authorization, employment authorized incident to status, or the dependents of such aliens. See 8 CFR 274a.12(b) and (c).

C. Form I-765

    Form I-765 is an application filed by aliens who are employment authorized incident to status and are seeking an Employment Authorization Document (EAD), or aliens eligible for employment authorization who are seeking both a grant of employment authorization and an EAD. See 8 CFR 274a.12(a) and (c). USCIS is designating the following classification within Form I-765 as eligible for Premium Processing Service:

Designated classification within Form I-765	Corresponding employment- based (EB) immigrant Visa classification	Statutory description of immigrant Visa classification
Aliens whose Form I-485, Application to Register Permanent Residence or Adjust Status, that is supported by an employment-based immigrant visa petition, is pending with and who are requesting a renewal of employment authorization.	EB-1 to EB-5 (with Form I-485 pending).	INA 203(b), 8 U.S.C. 1153(b). INA 245(a), 8 U.S.C. 1255(a). 8 CFR USCIS 274a.12(c)(9).

    USCIS has determined that this classification falls within its authority in section 286(u) of the INA, 8 U.S.C. 1356(u), to provide Premium Processing Service to employment-based Forms. An approved Form I-765 would allow those aliens seeking to adjust status to that of a lawful permanent resident based on employment to accept new employment or continue their current employment while their adjustment application remains pending. Therefore, in this context, Form I-765 qualifies as an employment-based applicat ion as required by section 286(u) of the INA, 8 U.S.C. 1356(u).

    In addition, extending Premium Processing Service to this classification will enable USCIS to improve its services to its business customers (i.e. employers who are sponsoring foreign-born workers). Using premium processing fees to provide services to business customers is another statutory requirement in section 286(u) of the INA, 8 U.S.C. 1356(u). These business customers want to be assured that their foreign-born workers will not have a break in employment or consider employment elsewhere. Allowing princ ipal aliens and their dependents to secure renewal of employment quickly while their adjustment of status application remains pending, should ensure that the petitioning employers' sponsorship of the principal alien will continue until he or she has obtained lawful permanent resident status. This also should ensure that the principal alien can continue to work for the sponsoring employer for some time thereafter.

III. Concurrently Filed Applications

    The adjudication of some immigration forms relies upon the processing of other related forms. This is true of Form I-539 designated by this Notice. This section of the Supplementary Information discusses issues relating to this designation and related forms.

A. Concurrent Filing of Form I-765 With Form I-539

    For aliens seeking an EAD from USCIS, Form I-765 normally cannot be filed until after the underlying petition or application has been approved. See 8 CFR 274a.1; 8 CFR 274a.13. USCIS has determined that, as a courtesy, it will permit certain classifications within Form I-539 designated by this Notice to file Form I-765 concurrently with Form I-539 that they are filing via Premium Processing Service. These classifications are: B-1 personal or domestic servants; B-1 airline employees; E-1 or E-2 dependent spo uses; and L-2 spouses. Premium Processing Service, however, only applies to Form I-539; therefore, USCIS cannot guarantee that the concurrently filed Form I-765 will be processed within the same 15 calendar day period as Form I-539.

B. Concurrent Filing of Form I-539 for Dependents of Aliens With Forms I-129 Filed Under Premium Processing Service

    As a courtesy, USCIS currently provides 15 calendar day processing for a dependent's Form I-539 concurrently filed with the principal alien's Petition for a Nonimmigrant Worker (Form I-129) for which an employer has requested Premium Processing Service, without charging an additional $1,000 premium processing fee. Form I-129 is filed by employers seeking nonimmigrant workers who are either outside the United States or are changing status or extending their stay within the United States to perform temporary services or labor, or to receive training. See 8 CFR 214.1(c); 8 CFR 214.2(e), (h), (l), (o), (p) & (q); 8 CFR 248. Employers may request Premium Processing Service for Form I-129 within one of the following classifications: E-1 Treaty Trader; E-2 Treaty Investor; H-1B Temporary Worker with Specialty Occupation; H-2B Temporary Worker; H-3 Trainee; L-1 Intracompany Transferee; O-1 and O-2 Aliens of Extraordinary Ability or Achievement; P-1, P-2, and P-3 Athletes and Entertainers; Q-1 International Cultural E xchange Alien; R-1 Temporary Worker in Religious Occupations; and TN NAFTA Professional. See 66 FR 29682, 29683 (June 1, 2001).

    While this Notice designates Form I-539 for Premium Processing Service with respect to many of the dependent classifications associated with these principal alien classifications, USCIS nevertheless will continue the courtesy practice of processing Forms I-539 within 15 calendar days for any dependent classification filed concurrently with the principal alien's Form I-129 for which Premium Processing Service has been requested. Premium Processing Service only will apply to the Form I-129. Therefore, while U SCIS may process a concurrently filed Form I-539 within the 15 calendar day Premium Processing Service period, USCIS does not guarantee such processing. USCIS will not issue a refund of the $1,000 premium-processing fee submitted with the concurrently filed Form I-129 if the Form I-539 is not processed within 15 calendar days.

    To ensure 15 calendar day processing rather than rely on courtesy processing, dependents filing eligible Forms I-539 should file a separate request for Premium Processing Service and $1,000 processing fee.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995), all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements. This Notice does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

    USCIS anticipates that this Notice will increase the number of requests for Premium Processing Service using Form I-907. In calculating the overall burden this requirement will place upon the public, USCIS estimates an annual increase in the number of requests for Premium Processing Service of approximately 25%. USCIS has estimated that it will take approximately 0.25 hours to comply with the requirements of Form I-907. Accordingly, USCIS will submit the required Paperwork Reduction Change Worksheet (OMB-83 C) to OMB reflecting the increase in the number of respondents.

FOOTNOTE

1.     “EB” stands for “Employment-Based.” The numbers 1, 2 or 3 correspond to the visa classifications described in sections 203(b)(1), (2), and (3) of the INA, 8 U.S.C. 1153(b)(1), (2), and (3).

2.     The nomenclature used in this column can be found in 8 CFR 214.1(a)(2).