U.S. Citizenship and Immigration Services (USCIS) announced that effective Friday, May 18, 2007, it will terminate Premium Processing service for Form I-140 Petitions that request labor certification substitution. USCIS announced the end of Premium Processing of these petitions in anticipation of a substantial increase in the number of Form I-140 Petitions requesting Premium Processing and seeking labor certification substitution prior to July 16, 2007 (the date upon which labor certification substitution will no longer be available to Form I-140 petitioning employers). The volume of such petitions filed requesting Premium Process is expected to exceed USCIS capacity to provide the Premium Process service according to the program guidelines of 15 day processing.

We would note that USCIS permitted Premium Processing of Form I-140s that requested labor certification substitution only under limited circumstances. Specifically, such Form I-140 petitions could only be Premium Processed if the original certified labor certification (Form ETA 9089 or Form ETA 750) was submitted with the I-140 Petition. This requirement barred most substitution cases from Premium Processing, as the original certified ETA 750 or ETA 9089 had already been submitted to USCIS with a previously filed I-140 Petition. The I-140 Petition requesting labor certification substitution on such cases could only submit a duplicate of the original ETA 750 or ETA 9089. Due to the delays in retrieving the original labor certification approvals from the prior I-140 Petitions, USCIS barred Premium Processing of labor certification substitutions unless the original certification was submitted with the I-140 Petition requesting substitution.

USCIS continues to accept the following types of I-140 Petitions for Premium Processing: I-140 Petitions for Extraordinary Ability Aliens (EB1A); Outstanding Researchers (EB1B); I-140 Petitions for Advanced Degree Professionals not requiring a National Interest Waiver (EB2); I-140 Petitions for Professionals and Skilled Workers (EB3).

The U.S. Department of Labor (DOL) amended its labor certification regulations to bar substitution of aliens on approved or pending labor certifications. The final rule was published in the Federal Register on May 17, 2007 and will take effect on July 16, 2007. As a result, beginning on July 16, 2007, USCIS will no longer accept Form I-140 petitions that are supported by labor certifications that were approved by DOL for an alien other than the alien beneficiary named on the labor certification application.

USCIS notes: "Premium Processing guarantees that within 15 calendar days of receipt of a petition, USCIS will issue either an approval notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation. Due to the volume of Form I-140 petitions that request labor certification substitution that USCIS anticipates will be filed prior to July 16, 2007 (the date upon which labor certification substitution will no longer be available to Form I-140 petitioning employers), USCIS can not reasonably ensure this level of processing service for Form I-140 petitions that request labor certification substitution within 15 calendar days."

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