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.

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