I-140 Premium Processing: Good or Bad?


Premium Processing is a service offered by USCIS for which anyone filing an I-140 (or with an I-140) can pay USCIS an extra $1225 and they will guarantee processing your case within 2 weeks or they will refund your money (and, according to USCIS, continue processing the case in an expedited manner).  While it would certainly be nice if USCIS could just adjudicate I-140’s in a timely manner to begin with, considering it is now taking in excess of 6 months for most applications, more and more people are looking at using Premium Processing to get their cases decided quicker.  Before you decide whether or not to turn over more money to USCIS, there are a coupe of things to consider:
1.  What Type of Case do you have?
While Premium Processing is able to be used with most employment based cases, there are some that it cannot be used with.  Actually, there is only ONE case type it cannot be used with:  The National Interest Waiver.  Why it cannot be used with this case type is not explained by USCIS, but we can hypothesize.  My belief is that it would seem contrary to the whole spirit of the national interest waiver to adjudicate the cases quickly as it would appear that the national interest was not taken into account.  Another possibility is that they feel that the extra burden it would create, even with the extra fees, would overwhelm the Premium Processing Unit.  Perhaps, some day, USCIS will make this case type eligible.  Until then, just remember, if you have a NIW case, you CANNOT use Premium Processing.  If you have any other type of I-140 case, you can.
2.  What is the current USCIS Processing Timelines?
While it does not happen frequently, there are times when certain I-140’s are being adjudicated fairly quickly (i.e 1-2 months).  If you are filing such a case during a time in which USCIS is adjudicating that case type quickly, using premium processing may not really be worth the money.  It is important to check the USCIS Processing times on the website (Click here for the link).  (Click here to read my blog post on how to read the USCIS processing time reports).
3. How strong is your case?
Many times, our clients who have filed an EB-1A Extraordinary Ability case (EA) want to use premium processing.  While we certainly understand wanting to know the outcome of the case sooner rather than later, we also feel it is important to look at the strength of the case to determine if and when to use premium processing in a particular case.
Primarily, what the strength of your case shows is the likelihood of getting a Request for Evidence (RFE).  If your case is not so strong, there is more of a likelihood that USCIS will send you an RFE and if your case is strong, there is less of a likelihood.  This is important because, lets say, you compile all your documents but still have just an ok case that is on the week side.  If you use Premium Processing right away and USCIS issues an RFE asking for more evidence of your extraordinary ability what are you going to give them?  After all, you just sent in all your documents less than 2 weeks ago.  Will people who just gave you support letters give you new letters?  Will you have more citations, or more papers?   In cases like these we usually suggest that the client wait at least 1-2 months before using premium to ensure that there will be something we can use in the response should a response to an RFE be needed.
Stronger cases do not have to worry about this as much for two reasons.  First, there is much less likelihood of getting an RFE.  Second, since their cases are stronger, usually that means that their citation history increases at a faster rate, and there is usually more documentation out there that we did not get for the first application that we could still use in a response to an RFE.
4.  What is USCIS track record at the time you want to use Premium Process?
Having many clients allows us to see trends at USCIS.  And with Premium Processing, there definitely are trends.  Sometimes it seems as though every application filed using premium received an RFE.  Sometimes, a majority receive RFE’s but not a vast majority. And sometime, Premium Processing works as it should and applications are adjudicated equally through both Premium Processing and Regular Processing.  Which trend is active is something you should investigate before deciding to use premium.  If USCIS is sending an RFE on most or all cases filed using Premium Processing, it may be a good idea to hold off and wait until that trend turns around.
I hope the above shows you what we feel the main considerations are in terms of whether to use premium processing or not.  If you have an attorney, checking with them can get you answers to all the above questions and make your choice easier.  Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Author: Adam Frank, Esquire

I am an immigration attorney with over 20 years of experience. I was graduated from Brandeis University undergrad in 1990 and then spent a year traveling around Central America. In 1991 I began attending the University of Baltimore School of Law and was graduated in 1994. I began working in Immigration Law in 1998 when I joined a small law firm and, in 2000 opened my own firm with my law partner Ed Leavy. Sadly, Ed passed away in 2011. I am still a partner in my own firm with my current partner Brendan Delaney. Our firm is Frank & Delaney Immigration Law, LLC.

5 thoughts on “I-140 Premium Processing: Good or Bad?”

  1. i filled an eb1 i140 under premium process.i got an r.f.e 8 pages long.things like ex ” ur publications talk aboyt ur work but send us something to prove they are major” or ” u send us evidence about ur roles in films and tv but we need letters from producers etc to talk about ur leading role in the projects”. i did my best and send whatver i could and even more.i am now waiting for a decision. even though i had sent letters proving my role in projects in my i140 case or other evidence they asked for.like they were lazy to check eveything i sent in the first place. i feel lately uscis wants to reject more people, after trump, so they can find stupid excuses to deny you and you cant do nothing about it. example i can send an award i earned as an actor and they might say..great but one is not enough we need 10 at least. since there are no clear rules and limits..u think uscis lately denies people super easy..like they “follow orders to do so”? have you noticed the same lately?
    people have mentioned that usually uscis sents r.f.es most of the time to give a chance even if ur chances to get approved are like 30-40%. i thought a good r.f.e with chances to get approved would be something like “u forgot to sign this app. or you forgot to include your I-94 or at least more evidence in one category. not in all like i received. i am wondering what my chances are..too much stress until i receive my answer. any thoughts or opinions would be appreciated. thanks

    1. We have found that USCIS is now applying the law in a much more stringent fashion. Whereas there use to be greater diversity in terms of what was and what was not approved between officers, now all officers are moving towards the stringent side of what will be approved. That being said, this is not necessarily tru across the board as of yet, but It is getting there. And, to your question, yes they are sending long, boilerplate RFEs in many cases, although they always have done this to a certain extent. In your particular case, I cannot say what your chances of success are as I have not reviewed your documents. Which is what I would have to do in order to give a good idea. I can say the overall approval rating for the EB-1 is between 50-60% (most likely – and this was before the new administration, so it may be lower now).

    1. I am not quite sure what this has to do with premium processing, but you are correct that citations after the date of the original filing, in general, do not help the case as much. However, to say they do not help at all is not correct. While the key is looking at what occurred prior to filing, citations can still reflect the importance of the work you did PRIOR to filing the application, and can count as something that was not available at the time of filing. Because of this, in cases in which we get an RFE we do include updated citation history and relate it to publications that were published prior to filing to show that they are relevent.

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