Since 2014, companies have paid upwards of $2.4 billion in premium processing fees to the US government to ensure their business immigration applications are fast-tracked and decided in a reasonable timeframe, according to an article in Forbes this month. Rooney Nimmo senior associate Elannie Damianos likens the process to “paying for faster processing of a passport application.” But the stakes for individuals and businesses in cases such as a job transfer can be much higher than for a standard passport renewal, and time is typically of the essence.
“As it stands, applicants already pay filing fees to have their visa applications processed,” Damianos explains. “While many companies have adequate capital to pay the additional premium processing fee, it does create a disparity between larger, established companies and smaller startups in the early stages of growth, which may rely more heavily on moving employees with specific skills to fuel their growth.”
Some critics feel that the US Citizenship and Immigration Services (USCIS) may be happy to go slow because the longer it takes to approve a visa, the more income the agency is likely to gain in premium processing fees, which are available for E, H, L, O, and a few other temporary visa applications. However, a premium fee doesn’t always translate into speedy delivery.
Usually, an H-1B visa extension or job-change petition can take up to a year to approve, which is too long to wait for most businesses. The way around this is to pay a $1,440 fee to reduce the processing time to 15 business days. But this 15-day period pauses if the USCIS issues a Request for Evidence (RFE), which typically demands evidence beyond the information already provided. The issuance of RFEs on H-1B visa cases has increased significantly in recent years, as has the rate of denials. In 2016, only 21% of H-1B applications received RFEs, with an application approval rate of approximately 80%. In 2019, RFEs were requested in 60% of cases, with approval rates of only 61% post-RFE.
“The increase in RFEs being issued means that for the most part, even those who do pay for premium processing are still faced with delays of several months to account for time spent responding to the RFE,” said Rooney Nimmo foreign law clerk Abbey Docherty. This is often equivalent in time to drafting an entirely new petition.
“Many of the RFEs we see are boilerplate and will request information or documents that were actually submitted with the initial application. This suggests that premium processing fees don’t result in a quicker review process after all. Instead, it seems that internal USCIS time and resource constraints prevail, resulting in the issuance of generic RFEs, which conveniently gives USCIS more time beyond those 15 days,” Docherty continued.
Many argue that USCIS has made premium processing a de facto requirement because in the majority of business immigration cases it takes so long to process an application that, without paying for expeditated processing, the worker’s transition becomes untenable. This is particularly true in cases involving a change-of-employer application or a new work location. Theoretically, an employee can join a company upon filing their application, but with increasing denial rates, the risk of that individual being left with no job are often too high to risk.
Robbing Peter to Pay Paul
In 2018, USCIS stated that, in order to improve turnaround time, it would use the money generated from premium processing fees to invest in technology and hire additional human resources. The logic here seems flawed. With premium fees making up 11.5% of the USCIS budget, were USCIS to dramatically improve processing times, the need for premium processing would be reduced, and the revenue necessary to sustain more efficient processing would be cut. It therefore seems unlikely that proposed improvements will effect long-term changes.
Meanwhile, policy changes made under the current administration, which have led to an increase in RFEs and requirements for in-person interviews for employment-based visas, as well as a diversion of agency resources, have guaranteed that wait times remain long and the need for premium processing high. In addition, USCIS has seen a government-mandated hiring freeze and a transfer of more than $200 million from its budget to Immigration and Customs Enforcement (ICE). A substantial improvement in the process doesn’t seem to be on the cards.
Whether or not improvements to the system are made, we recommend that our clients factor premium processing fees into their budgets for visa applications. Our lawyers have a lot of experience managing the visa process on behalf of our corporate clients. If you have any questions or need help, drop us a line here.