1. After the PERM Application Approval, How Long the I-140 Petition Process Will Likely Take?
After the U.S. Department of Labor (DOL) approves the PERM Labor Certification application, the U.S. employer can file an Form I-140 petition with U.S. Citizenship and Immigration Services (USCIS). The Form I-140 petition should includes the original approved PERM application in which the U.S. employer and the alien beneficiary worker must sign it.
The Form I-140 petition should also include the evidence of the U.S. employer’s ability to pay the alien worker’s salary, and documents confirming that the alien beneficiary is qualified for the position, such as a copy of the alien worker’s educational degrees. The approved PERM Labor Certification application is only valid for a certain period of time, therefore the Form I-140 petition must be filed within this validity period. Otherwise the PERM Labor Certification application will expire, and the employer must start over again.
Generally, USCIS may take at least four months for I-140 decisions, and it can take USCIS much longer to adjudicate the Form I-140 petitions. Also, there is an expediting option available, Form I-140 Premium Service, for Form I-140 petition. The employer can pay an extra $1000 fee and request premium processing within 15 calendar days of receipt. A USCIS officer will review the application and determine the appropriate action which would be an approval. Alternatively, an USCIS officer could issue a Request for Further Evidence (RFE), or a Notice of Intent to Deny (NOID). For the case of RFE, USCIS will make a decision within 15 days of receipt of the response.
2. The Premium Processing Service of Form I-140 Petition
U.S. Citizenship and Immigration Services (USCIS) has started the form I-140 petition Premium Processing Service, which allows U.S. employers to pay a $1,000 Premium Processing fee in exchange for 15-calendar-day processing of their case.
USCIS accepts the Premium Processing requests for form I-140 petitions involving one of two employment-based immigration categories within the employment-based preference. Those categories are:
1) EB-3 Professionals, i.e. immigrant workers with bachelor degrees who are members of the professions, and
2) EB-3 Skilled Workers, i.e. immigrant workers capable of performing skilled labor requiring at least two years of education, training or experience.
Employers file for both categories using Form I-140 - Immigrant Petition for Alien Worker. Premium Processing is not available to “other workers” in the EB-3 category for jobs that do not require two years of education, training or experience.
Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a Request For Evidence (RFE), or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt.
3. The Advantage of the Premium Processing Services for Form I-140 Petition
The launch of I-140 petition premium processing services, limited to EB-3 cases only initially, may induce the EB-3 professionals to take advantage of the premium processing services for a number of reasons:
1) H-1B extension beyond the six-year limit. The services will be particularly valuable for those who could not file a H-1B extension beyond the six-year limit, because they started the labor certification application after they reached five years in H-1B status.
2) The premium processing of I-140 will help those who need to change employment after 180 days of I-485 filing. USCIS allows portability of I-140 petition after passage of 180 days after filing of I-485 and the I-140 petition was approved. Launch of the I-140 premium processing services will help such aliens to achieve the needed change of employment under AC-21 Act.
3) The premium processing of I-140 will also assist those aliens who need the retention of their priority date and transfer to another petition. Under the current law, the priority date of the employment based immigrant petition can be retained once the I-140 petition is approved and can be transferred to another immigrant petition.
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