[Federal Register: May 23, 2006 (Volume 71, Number 99)]
[Notices]
[Page 29662-29665]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my06-73]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2350-05; DHS Docket No. USCIS-2005-0039]
RIN 1615-ZA20
Notice of Designation of Certain Employment-Based Petitions and
Applications as Eligible for Premium Processing Service
AGENCY: U.S. Citizenship and Immigration Services, Department of
Homeland Security.
ACTION: Notice.
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SUMMARY: This Notice designates the following forms as eligible for
Premium Processing Service: Form I-140 ``Immigrant Petition for Alien
Worker,'' Form I-539 ``Application to Extend/Change Status,'' and Form
I-765 ``Application for Employment Authorization.'' Under Premium
Processing Service, U.S. Citizenship and Immigration Services
guarantees that it will process designated petitions and applications,
and classifications within these petitions and applications that U.S.
Citizenship and Immigration Services makes available for the service,
within 15 calendar days for an additional processing fee of $1,000.
DATES: This Notice is effective May 23, 2006.
FOR FURTHER INFORMATION CONTACT: Kristina Carty-Pratt, Adjudications
Officer, Business and Trade, Office of Programs and Regulations
Development, U.S. Citizenship and Immigration Services, Department of
Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor,
Washington, DC 20001, telephone (202) 272-8400.
SUPPLEMENTARY INFORMATION:
I. Background
U.S. Citizenship and Immigration Services (USCIS) offers expedited
processing of certain employment-based petitions and applications
(hereinafter collectively referred to as ``Forms'') through its Premium
Processing Service. For an additional processing fee of $1,000, Premium
Processing Service guarantees that USCIS will process designated Forms,
and designated classifications within these Forms, within 15 calendar
days of receiving a Request for Premium Processing Service, Form I-907.
See Immigration and Nationality Act (INA) sec. 286(u), 8 U.S.C.
1356(u); 8 CFR 103.2(f). USCIS designates Forms and classifications
within these Forms as eligible for Premium Processing Service through
notices published in the Federal Register. 8 CFR 103.2(f)(2).
USCIS, by an interim rule published elsewhere in this issue of the
Federal Register, has revised its procedures for designating Forms and
classifications for Premium Processing Service. Pursuant to those
revised procedures, USCIS is issuing this Notice to designate the
following Forms and certain classifications within these Forms as
eligible for Premium Processing Service: Form I-140 ``Immigrant
Petition for Alien Worker,'' Form I-539 ``Application to Extend/Change
Nonimmigrant Status,'' and Form I-765 ``Application for Employment
Authorization.'' The designated classifications within these Forms that
will be eligible for Premium Processing Service are described under the
``Form Designations'' heading of this SUPPLEMENTARY INFORMATION.
USCIS will specify the dates on which the availability of Premium
Processing Service for these designations begins and ends, and any
other applicable conditions of availability for premium processing, via
the USCIS Web site at http://www.uscis.gov.
II. Designations
A. Form I-140
Form I-140 is a petition filed with USCIS as the first step to
obtaining permanent resident status based on employment. Form I-140 is
filed by or on behalf of aliens seeking status within certain
employment-based immigrant visa classifications created by section
203(b) of INA, 8 U.S.C. 1153(b). USCIS approval of a Form I-140
establishes that the alien seeking permanent resident status and, if
applicable, his or her sponsoring employer, meet the qualification
requirements. USCIS is designating the following classifications within
Form I-140 as eligible for Premium Processing Service:
------------------------------------------------------------------------
Statutory
Designated classifications Corresponding employment- description of
within Form I-140 based immigrant visa immigrant visa
classifications\1\ classifications
------------------------------------------------------------------------
Aliens of extraordinary EB-1.................... INA
ability. 203(b)(1)(A),
8 U.S.C.
1153(b)(1)(A).
Outstanding professors and EB-1.................... INA
researchers. 203(b)(1)(B),
8 U.S.C.
1153(b)(1)(B).
Multinational executives and EB-1.................... INA
managers. 203(b)(1)(C),
8 U.S.C.
1153(b)(1)(C).
Members of professions with EB-2.................... INA
advanced degrees or 203(b)(2)(A),
exceptional ability not 8 U.S.C.
seeking a National Interest 1153(b)(2)(A).
Waiver.
Skilled workers.............. EB-3.................... INA
203(b)(3)(A)(i
), 8 U.S.C.
1153(b)(3)(A)(
i).
Professionals................ EB-3.................... INA
203(b)(3)(A)(i
i), 8 U.S.C.
1153(b)(3)(A)(
ii).
[[Page 29663]]
Workers other than skilled EB-3.................... INA
workers and professionals. 203(b)(3)(A)(i
ii), 8 U.S.C.
1153(b)(3)(A)(
iii).
------------------------------------------------------------------------
\1\ ``EB'' stands for ``Employment-Based.'' The numbers 1, 2 or 3
correspond to the visa classifications described in sections
203(b)(1), (2), and (3) of the INA, 8 U.S.C. 1153(b)(1), (2), and (3).
USCIS is not designating EB-2 National Interest Waiver petitions as
eligible for Premium Processing Service. See INA sec. 203(b)(2)(B), 8
U.S.C. 1153(b)(2)(B); 8 CFR 204.5(k)(4)(ii). These petitions are very
complex and, therefore, require more than 15 calendar days to
adjudicate.
B. Form I-539
Form I-539 is an application filed by aliens in the United States
who are applying for an extension of stay in their current nonimmigrant
status or for a change of nonimmigrant status. See 8 CFR 214.1(c)(2)
(extensions of stay); 8 CFR 248.3(b) (change in nonimmigrant status).
Depending on the status requested, Form I-539 may be filed by a
``principal'' alien or by a ``dependent'' of a principal alien. USCIS
uses the term ``principal'' alien to refer to an alien seeking to
obtain status in the United States based upon his or her eligibility
for a particular visa classification. USCIS uses the term ``dependent''
to refer to an alien seeking to obtain status in the United States as a
close relative, usually a spouse or child, of a ``principal'' alien.
See INA sec. 101(a)(15), 8 U.S.C. 1101(a)(15).
USCIS is designating the Form I-539 for use in changing to or
extending status in the following classifications within Form I-539 as
eligible for Premium Processing Service:
------------------------------------------------------------------------
Statutory
Corresponding description of
Designated classification nonimmigrant visa nonimmigrant
within Form I-539 classification \2\ visa
classification
------------------------------------------------------------------------
Business visitors who are B-1..................... INA
personal or domestic 101(a)(15)(B)(
servants or foreign airline i), 8 U.S.C.
employees eligible for 1101(a)(15)(B)
employment authorization (i).
pursuant to 8 CFR 8 CFR
274a.12(c)(17). 274a.12(c)(17)
Exchange visitors who are J-1..................... INA
professors, scholars, 101(a)(15)(J),
trainees, teachers, 8 U.S.C.
specialists, alien 1101(a)(15)(J)
physicians, international .
visitors, government
visitors, camp counselors,
au pairs, and summer work
travel (Applicable to those
changing status only.
Extensions of stay are
requested through the
Department of State.)
Dependents of designated J-1 J-2..................... INA
exchange visitors 101(a)(15)(J),
(Applicable to those 8 U.S.C.
changing status only. 1101(a)(15)(J)
Extensions of stay are .
requested through the
Department of State.)
Dependents of E-1 treaty E-1..................... INA
traders. 101(a)(15)(E)(
i), 8 U.S.C.
1101(a)(15)(E)
(i).
Dependents of E-2 treaty E-2..................... INA
investors. 101(a)(15)(E)(
ii), 8 U.S.C.
1101(a)(15)(E)
(ii).
Dependents of H-1B specialty H-4..................... INA
occupation workers, H-2B 101(a)(15)(H),
temporary skilled or 8 U.S.C.
unskilled workers, or H-3 1101(a)(15)(H)
trainee or special education .
trainee program workers.
Dependents of principal L-1 L-2..................... INA
intracompany transferees 101(a)(15)(L),
(managers or executives (L- 8 U.S.C.
1A) or aliens with 1101(a)(15)(L)
specialized knowledge (L- .
1B)).
Dependents of O-1 aliens with O-3..................... INA
extraordinary ability in the 101(a)(15)(O)(
arts, sciences, business, iii), 8 U.S.C.
education or athletics, or O- 1101(a)(15)(O)
2 essential support aliens. (iii).
Dependents of P-1 P-4..................... INA
internationally recognized 101(a)(15)(P)(
athletes or members of an iv), 8 U.S.C.
internationally recognized 1101(a)(15)(P)
entertainment group, P-2 (iv).
artists or entertainers in a
reciprocal exchange program,
P-3 artists or entertainers
in a program which is
culturally unique, or any P-
1, P-2, or P-3 essential
support alien.
Dependents of R-1 temporary R-2..................... INA
workers in a religious 101(a)(15)(R),
occupation. 8 U.S.C.
1101(a)(15)(R)
.
Dependents of TN TD...................... INA 214(e)(2),
nonimmigrants pursuant to 8 U.S.C.
the North American Free 1184(e)(2).
Trade Agreement (NAFTA).
------------------------------------------------------------------------
\2\ The nomenclature used in this column can be found in 8 CFR
214.1(a)(2).
The above classifications all relate to aliens who are eligible for
employment authorization, employment authorized incident to status, or
the dependents of such aliens. See 8 CFR 274a.12(b) and (c).
C. Form I-765
Form I-765 is an application filed by aliens who are employment
authorized incident to status and are seeking an Employment
Authorization Document (EAD), or aliens eligible for employment
authorization who are seeking both a grant of employment authorization
and an EAD. See 8 CFR 274a.12(a) and (c). USCIS is designating the
following classification within Form I-765 as eligible for Premium
Processing Service:
[[Page 29664]]
------------------------------------------------------------------------
Statutory
Designated classification Corresponding employment- description of
within Form I-765 based (EB) immigrant immigrant Visa
Visa classification classification
------------------------------------------------------------------------
Aliens whose Form I-485, EB-1 to EB-5 (with Form INA 203(b), 8
Application to Register I-485 pending). U.S.C.
Permanent Residence or 1153(b).
Adjust Status, that is INA 245(a), 8
supported by an employment- U.S.C.
based immigrant visa 1255(a).
petition, is pending with 8 CFR
USCIS and who are requesting 274a.12(c)(9).
a renewal of employment
authorization.
------------------------------------------------------------------------
USCIS has determined that this classification falls within its
authority in section 286(u) of the INA, 8 U.S.C. 1356(u), to provide
Premium Processing Service to employment-based Forms. An approved Form
I-765 would allow those aliens seeking to adjust status to that of a
lawful permanent resident based on employment to accept new employment
or continue their current employment while their adjustment application
remains pending. Therefore, in this context, Form I-765 qualifies as an
employment-based application as required by section 286(u) of the INA,
8 U.S.C. 1356(u).
In addition, extending Premium Processing Service to this
classification will enable USCIS to improve its services to its
business customers (i.e. employers who are sponsoring foreign-born
workers). Using premium processing fees to provide services to business
customers is another statutory requirement in section 286(u) of the
INA, 8 U.S.C. 1356(u). These business customers want to be assured that
their foreign-born workers will not have a break in employment or
consider employment elsewhere. Allowing principal aliens and their
dependents to secure renewal of employment quickly while their
adjustment of status application remains pending, should ensure that
the petitioning employers' sponsorship of the principal alien will
continue until he or she has obtained lawful permanent resident status.
This also should ensure that the principal alien can continue to work
for the sponsoring employer for some time thereafter.
III. Concurrently Filed Applications
The adjudication of some immigration forms relies upon the
processing of other related forms. This is true of Form I-539
designated by this Notice. This section of the Supplementary
Information discusses issues relating to this designation and related
forms.
A. Concurrent Filing of Form I-765 With Form I-539
For aliens seeking an EAD from USCIS, Form I-765 normally cannot be
filed until after the underlying petition or application has been
approved. See 8 CFR 274a.1; 8 CFR 274a.13. USCIS has determined that,
as a courtesy, it will permit certain classifications within Form I-539
designated by this Notice to file Form I-765 concurrently with Form I-
539 that they are filing via Premium Processing Service. These
classifications are: B-1 personal or domestic servants; B-1 airline
employees; E-1 or E-2 dependent spouses; and L-2 spouses. Premium
Processing Service, however, only applies to Form I-539; therefore,
USCIS cannot guarantee that the concurrently filed Form I-765 will be
processed within the same 15 calendar day period as Form I-539.
B. Concurrent Filing of Form I-539 for Dependents of Aliens With Forms
I-129 Filed Under Premium Processing Service
As a courtesy, USCIS currently provides 15 calendar day processing
for a dependent's Form I-539 concurrently filed with the principal
alien's Petition for a Nonimmigrant Worker (Form I-129) for which an
employer has requested Premium Processing Service, without charging an
additional $1,000 premium processing fee. Form I-129 is filed by
employers seeking nonimmigrant workers who are either outside the
United States or are changing status or extending their stay within the
United States to perform temporary services or labor, or to receive
training. See 8 CFR 214.1(c); 8 CFR 214.2(e), (h), (l), (o), (p) & (q);
8 CFR 248. Employers may request Premium Processing Service for Form I-
129 within one of the following classifications: E-1 Treaty Trader; E-2
Treaty Investor; H-1B Temporary Worker with Specialty Occupation; H-2B
Temporary Worker; H-3 Trainee; L-1 Intracompany Transferee; O-1 and O-2
Aliens of Extraordinary Ability or Achievement; P-1, P-2, and P-3
Athletes and Entertainers; Q-1 International Cultural Exchange Alien;
R-1 Temporary Worker in Religious Occupations; and TN NAFTA
Professional. See 66 FR 29682, 29683 (June 1, 2001).
While this Notice designates Form I-539 for Premium Processing
Service with respect to many of the dependent classifications
associated with these principal alien classifications, USCIS
nevertheless will continue the courtesy practice of processing Forms I-
539 within 15 calendar days for any dependent classification filed
concurrently with the principal alien's Form I-129 for which Premium
Processing Service has been requested. Premium Processing Service only
will apply to the Form I-129. Therefore, while USCIS may process a
concurrently filed Form I-539 within the 15 calendar day Premium
Processing Service period, USCIS does not guarantee such processing.
USCIS will not issue a refund of the $1,000 premium-processing fee
submitted with the concurrently filed Form I-129 if the Form I-539 is
not processed within 15 calendar days.
To ensure 15 calendar day processing rather than rely on courtesy
processing, dependents filing eligible Forms I-539 should file a
separate request for Premium Processing Service and $1,000 processing
fee.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), all Departments are required to submit to the Office
of Management and Budget (OMB), for review and approval, any reporting
or recordkeeping requirements. This Notice does not impose any new
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
USCIS anticipates that this Notice will increase the number of
requests for Premium Processing Service using Form I-907. In
calculating the overall burden this requirement will place upon the
public, USCIS estimates an annual increase in the number of requests
for Premium Processing Service of approximately 25%. USCIS has
estimated that it will take approximately 0.25 hours to comply with the
requirements of Form I-907. Accordingly, USCIS will submit the required
Paperwork Reduction Change Worksheet (OMB-83C) to OMB reflecting the
increase in the number of respondents.
[[Page 29665]]
Dated: May 4, 2006.
Michael Chertoff,
Secretary.
[FR Doc. 06-4755 Filed 5-22-06; 8:45 am]
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