United States Citizenship and Immigration Services (“USCIS”) has published a final rule increasing the fee to use its Premium Processing Service from $1,410 to $1,440. The new fee will take effect on December 2, 2019, and requests for Premium Processing postmarked on or after this date must include the new fee.

USCIS offers Premium Processing Service for certain employment-based immigration petitions and applications. By paying an additional fee, USCIS guarantees that it will process an employer’s petition or application within 15 calendar days of receiving the request. Further, employers who use USCIS’ Premium Processing Service also have access to special USCIS communication channels, namely, a Premium Processing Service telephone line and email address, and employers also receive email updates from USCIS regarding the status of their case.

While USCIS is increasing the fee for its Premium Processing Service, the adjudication times for petitions and applications filed under USCIS “regular” service have increased 91% over the past four years. It is not uncommon for U.S. employers who opt not to use USCIS’ Premium Processing Service to wait more than three months to over a year to receive an approval for a petition or application. Given these ever-increasing adjudication delays, U.S. employers now often feel that they have no choice but to pay the additional Premium Processing fee in order to be assured that their case will be approved in a timely fashion so that the employer can either recruit or retain an employee who is critical to the overall success of the employer’s business operations.

However, what many U.S. employers may not realize is that, unlike other USCIS fees and immigration costs, the Premium Processing Service fee does not have to be paid exclusively by the sponsoring employer. Instead, when opting for Premium Processing Service, three options exist: the fee can be paid by the U.S. employer, by the foreign employee, or split between the two. In fact, given current USCIS processing delays, where financially feasible, foreign employee beneficiaries are increasingly either choosing to pay all or part of the Premium Processing Service fee in order to achieve timely resolution of their immigration status when their U.S. employer does not wish to incur the fee.

In these uncertain times and increasing adjudication delays in legal immigration, we suggest that employers seek out the advice and assistance of experienced counsel when preparing and filing an immigration benefit on behalf of an employee in order to determine whether assuming the additional cost associated with Premium Processing is a business necessity and to develop a strategy for covering Premium Processing costs.

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Photo of Brenda A. Eckert Brenda A. Eckert

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination…

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination claims and related state tort claims.

Photo of Bradley M. Harper Bradley M. Harper

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green…

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green card” petitions, as well as with preparing and filing Responses to Requests for Evidence. He also provides general immigration advice to clients who have submitted or are preparing to submit family-sponsored immigrant visa (“green card”) petitions, adjustment of status applications, and applications to become naturalized U.S. Citizens.