[Federal Register Volume 71, Number 99 (Tuesday, May 23, 2006)]
[Notices]
[Pages 29662-29665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4755]


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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]
BILLING CODE 4410-10-P