Premium Processing Not Available for All EB-3 I-140 Petitions

According to the USCIS web site, Premium Processing was made available onmost Employment-Based Third Preference (EB3) I-140 petition on August 28,2006 (excluding the "other workers" category). The web site indicates that USCISplans to make premium processing available for other types of I-140 petitions atsome point in the future, although no information has been released about whenthis service will become available.

After making the initial announcement that premium processing was availablefor EB3 petitions, the USCIS added certain limitations to the availability of I-140premium processing. The web site now states:

Premium Processing Service is available for the Form I-140 classificationsindicated on the chart ... provided that the case does not involve:

1. A second filing of a Form I-140 petition while an initial Form I-140 remainspending;

2. Labor Certification substitution requests; and

3. Duplicate Labor Certification requests (i.e., cases filed without an originallabor certification from the Department of labor).

Premium processing is an expedited adjudication procedure which allows thepetitioner or applicant to pay a $1,000 fee in addition to any required filing fees,and which guarantees adjuciation within 15 calendar days. Premium processingalso affords the attorney, applicant or petitioner direct telephone contact with anactual USCIS adjudicator rather than with a mindless drone available at USCIS'sgeneral 1-800 number.

In most cases, it will not be beneficial to use premium processing for an EB3 I-140 petition, because priority dates are so retrogressed that most people's I-140swill be adjudicated years before a visa number becomes available, even withoutpremium processing. However, there may be certain cases, such as where an EB3labor certification has been stuck in a backlog for several years, where premiumprocessing on an EB3 I-140 is of great benefit. In addition, premium processingof an EB3 I-140 is beneficial for those wishing to take advantage of section 104(c)of the American Competitiveness in the Twenty First Century Act (AC21). Section104(c) of AC21 permits extensions of H-1B status past the 6th year in three-yearincrements where:

(1) An I-140 petition has been approved on the beneficiary's behalf; and

(2) The beneficiary is unable to obtain permanent residence because a visanumber is unavailable.

These extensions are permitted in three-year increments until the alien'sapplication for adjustment of status has been processed and a decision madethereon. Because an I-140 approval is needed before a 3-year H-1B extension canbe granted under AC21 104(c), premium processing may permit some H-1Bholders to extend their stay in cases where it would otherwise not be possible forthem to do so.

Highlights of AILA Meeting With Social Security

Following are highlights from the May 2006 meeting between the AmericanImmigration Lawyers Association and the Social Security Administration (SSA):

1. SSA reiterated its advice that aliens wait to apply for a Social Security Numberuntil 10 days after entering the U.S., as SSA must electronically verify the statusof each alien with USCIS before issuing a Social Security Number. If the alienapplies for a number fewer than 10 days after admission, the information aboutthe alien's status may not yet be uploaded into the database. The result is that amanual check of the alien's status may be launched and it could take months.

2. SSA has taken the stance that the spouses of E and L nonimmigrants are notrequired to obtain an Employment Authorization Card (EAD) from USCIS inorder to be eligible to receive a Social Security Number. While this seems to bethe original intent behind the regulations allowing E and L spouses to work,USCIS has always taken the stance that E and L spouses must obtain EAD beforeworking. Currently the USCIS has not reversed its position that EAD is required.

USCIS Purports to Have Eliminated the Naturalization Application Backlog

On September 15, 2006, USCIS issued a News Release stating that it has reducedthe wait-time for N-400 (application for naturalization) adjudication from anaverage of 14 months to an average of 5 months. Not included in that calculation,however, are "cases that are pending law enforcement security checks."

Our office handles a fairly small volume of applications for naturalization. Mostof the individuals who inquire about naturalization procedures with our office, weadvise to file the application themselves as it is relatively straightforward in mostcases and does not require attorney assistance. Cases that do require attorneyassistance are typically those where the applicant has spent a significant portionof time outside the United States during the required residency period, or whereother complications exist with the case. However, of the small volume ofnaturalization applications that we handle, approximately half are currently heldup in security clearances that are taking several months to resolve. Therefore it isour suspicion that the "backlog elimination" announced by USCIS is somewhatmisrepresentative of how long naturalization applications are actually taking.

Security clearances must be run on every naturalization applicant. They areconducted by agencies external to USCIS, such as the FBI and CIA. Therefore,USCIS does not have control over how long the security clearances take. Oftenthey can be held up because someone with a name similar to the applicant's has acriminal record or is wanted by the FBI. This is particularly true with verycommon names.

In some of our clients' cases, they have been called in for their naturalizationinterview prior to conclusion of security clearances. They are then told that theymust await conclusion of security clearances before their application can beadjudicated. Applicants in this situation should be aware that under 8 C.F.R.310.5(a), they have the right to petition a federal district court for relief. Thecourt may either determine the issues brought before it on their merits, orremand the matter to the Service with appropriate instructions.

Bispecialization Phase II: Adjustment of Status Applications

As of July 24, 2006, USCIS has implemented phase two of "Bispecialization." Allemployment-based I-485 applications for Adjustment of Status based on anapproved I-140 must now be filed at USCIS's Nebraska Service Center. Theapplication will be adjudicated by either the Nebraska or Texas Service Center.The service center that issues the receipt notice is the service center that shouldbe adjudicating the application.

Note that an employment-based I-485 application that is filed concurrently withan I-140 immigrant petition must also be filed at the Nebraska Service Center,since all I-140 petitions are now filed at Nebraska. However, an I-485 applicationfiled to accompany a currently pending I-140 petition would be filed either atNebraska or Texas, depending upon which service center issued the receipt noticefor the I-140, as the I-140 and I-485 must be adjudicated by the same servicecenter.