D&S Adjudication Alert: I-140 Adjudications Not Receiving Premium Processing

The immigration bar has noted a trend with the adjudication of certain I-140 petitions filed with premium processing service. It appears that the United States Citizenship and Immigration Service (USCIS) has been unable to meet premium processing deadlines on a large number of EB-1(a), (c) and EB-2 NIW I-140 petitions filed since December 2024. Individuals who intend to file such petitions with premium processing should expect the expedited timeline may not be honored by USCIS (in which case, a refund of the premium processing fee should occur, though USCIS will not issue the refund until case adjudication is completed).

D&S is continuing to monitor this developing adjudication trend and will provide updates as they become available.

Several Recent Legislative and Judicial Developments That Have Resulted in Temporary USCIS Filing Fee Uncertainty

On August 3, 2020 the Department of Homeland Security (DHS) proposed a new regulation which would change USCIS filing fees and also require USCIS to roll out new versions of several immigration forms in conjunction with the fee changes. The regulation was set to take effect on Friday, October 2, 2020. However, just days prior, on September 29th, 2020, a Federal District Court Judge in California presiding over litigation relating to the new fee rule, blocked the regulation from taking effect via a preliminary injunction. USCIS has yet to release any clarifying guidance as to how applicants and petitions should proceed in light of the injunction and whether filings that utilize the old forms and prior fees will be accepted or rejected if filed after today.

In addition, on September 30th, 2020, Congress passed and the President signed into law a continuing resolution bill titled “Emergency Stopgap USCIS Stabilization Act” to keep the government funded until December 11, 2020. This legislation includes important changes to the USCIS Premium Processing Program by increasing the cost of premium processing service and expanding it to additional immigration benefits

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