Premium Processing for EB2 NIW: Should you use it?

I have been approached by many prospective applicants for EB-2 National Interest Waiver green card with the following question: Oscar, should I pay extra and use Premium Processing for EB2 NIW? In this article I hope to dissipate some doubts regarding the use of expedited processing in the current environment. We will discuss current processing times, the backlogs imposed by the Visa Bulletin, and the pros and cons of Premium Processing for this category.

A Brief History of Premium Processing for EB2 NIW

Premium processing for the EB2 NIW category is a relatively recent development. It was introduced at the beginning of 2023, specifically on January 30th, 2023. This was met with great excitement in the immigrant community as it offered a faster route to I-140 adjudication in the National Interest Waiver program. Previously, applicants for this category had no option but to undergo regular processing, which often resulted in longer waiting times.

Understanding Premium Processing

Before getting further into this topic, it’s crucial to understand the basic details of premium processing for EB2 NIW:

  • To request premium processing, you must submit Form I-907.
  • You can choose to submit both Form I-140 and Form I-907 together or submit Form I-140 first and then later add Form I-907 to expedite your case.
  • The application fee for premium processing is $2,500 per person (consult the USCIS website for the most current information).
  • It’s vital to keep in mind that the payments for Form I-140 and Form I-907 should be made separately. Combining them may lead to application rejection.
  • USCIS has 45 calendar days to adjudicate your case (typical decisions are approval, denial, or Request for Evidence). It is expected that this timeframe will get longer when the new fee schedule goes into effect, as USCIS has announced their intention of converting Premium Processing 45 days into business days instead of calendar days.

Premium Processing Only Affects I-140 Stage

A key point to understand about premium processing is that it only expedites the I-140 submission stage. 

As discussed previously on this website, there are two distinct parts of the EB2 NIW process:

1. I-140 Submission: This is the initial and more challenging part where applicants need to build strong arguments to convince the USCIS officer.
2. I-485 Adjustment of Status or Consular Processing: This second step is not affected by premium processing and the wait times are governed by the monthly Visa Bulletin (you can learn how to read this bulletin here).

I-140 Processing Times Are Getting Shorter

USCIS has been making a big effort to reduce processing times since the pandemic had caused a snowball effect inside the agency. 

The figure below shows the I-140 median processing times for all employment-based green cards (so it’s not specific for EB2 NIW, but it gives a good idea of how the situation has been improving recently). The graph was constructed using data from USCIS you can access here.

Median Processing Times for I-140 petitions
Median Processing Times for I-140 petitions

 

More specifically, data from the USCIS processing time statistics for EB2 NIW also reflects this trend. Take the screenshots below. I took the one on the left in May 2022 and it was showing 20.5 months as adjudication time for 80% of the cases back then. In October 2023, this metric had gone down to 10.5 months. This statistic, contrary to the median times shown above, is only a conservative estimate as it is the time it takes them to solve 80% of the cases. Anecdotally, I can say that some of my clients have received responses from USCIS in 3 or 4 months lately. This was unthinkable just a few months ago!

Screenshot from USCIS Processing Times for EB2 NIW
Screenshots from USCIS Processing Times for EB2 NIW in 2022 and 2023

Visa Bulletin Backlogs Are Increasing

The second part of the process (adjustment of status or consular processing) cannot be sped up by paying the Premium Processing fee. This is because the time it takes to complete this last portion of the process depends on visa number availability. In the immigration system for the United States, US Congress imposes an annual limit on the number of green cards that USCIS and the Department of State can issue. When the applicants exceed the number of green cards in a given year, not everyone can receive their permanent residency status. 

The Visa Bulletin is the monthly publication that reflects the situation with the visa numbers. This bulletin has been showing a persistent backlog in recent months for the second priority employment-based green card category, of which NIW is a part of. While in May 2022 the Visa Bulletin was “current”, which means there are enough visa numbers for all applicants, the October 2023 bulletin shows a delay (or backlog) of approximately 1.3 years:

Screenshots of visa bulletins from 2022 and 2023
Screenshots of visa bulletins from 2022 and 2023

So…Is Premium Processing Worth It for EB2 NIW right now?

Given the improvements in processing times, EB2 NIW applicants may question the value of premium processing. The decision to use premium processing should be carefully considered, taking into account the following factors:

  • Current I-140 non-premium processing times are already significantly shorter than in previous years.
  • Premium processing only expedites the I-140 submission and does not affect the subsequent I-485 adjustment of status or consular processing.
  • The additional cost of $2,500 per person for premium processing may not be justified for everyone.
  • Do you really need to know within 45 days? Even if you cannot proceed to the next stage. Some people are really anxious about their immigration journey, and for them, it may be justified to pay the extra money for the peace of mind of knowing the result.

Many individuals may find that regular processing suffices for their needs. The decision ultimately depends on your individual circumstances and priorities.

When can Premium Processing for EB2 NIW make sense?

There are very specific and unique situation when one can actually benefit from the expedited processing of their application. Applicants under working visas (H-1B) may be able to continue renewing their visa beyond the 6 year limit if they can show an approved I-140. Spouses of such applicants under H visas can also apply for temporary work permits (EAD cards) if they can show they are part of an approved I-140 petition.

Side topic: Does Premium Processing for EB2 NIW result in more RFEs?

I also get this question asked a lot: will I increase my chance of triggering a Request for Evidence if I apply with premium processing? I don’t have a good answer for this question, as we don’t know what goes on inside USCIS. But, in theory, the agency cannot treat regular and premium processing applications differently.

I know some lawyers have had the feeling sometimes that Premium Processing does increase the probability of an RFE, and I even thought the same when looking at some badly put together Request for Evidence from USCIS…but the reality is that we do not have statistics to say one thing or the other definitively. 

Personal Take: What Would I Do About Premium Processing?

My personal opinion is not to use premium processing for EB2 NIW under the current circumstances. In cases where the priority date is far from becoming current, the cost of premium processing may not justify the only benefit of knowing about the I-140 decision earlier. However, individual circumstances vary, and some specific situations may still benefit from premium processing, like the ones described above for H visa holders.

Conclusion

In the ever-evolving landscape of immigration, premium processing for EB2 NIW requires careful consideration. Understanding the current processing times, Visa Bulletin implications, and the real value of speeding up your I-140 approval are essential to making informed choices. 

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