06/11/2008 - Certain Immigrants can now have their employer file their I-140 petitions using premium processing under the following conditions: 1) the employee is currently in H visa status and is nearing his maximum six (6) years within sixty (60) days; 2) the employee has not had a labor certification or I-140 pending for more than 365 (which would prompt H-1b visa extension for one (1) year); 3) the employee can not file a concurrent I-140 petition and I-485 application because his or her priority date is not current; and 4) if the I-140 is approved, the employee could extend his or her H-1b visa for 3 years to pursuant to section 106(c) of the American Competitiveness in the Twenty First Century Act of 2000 ("AC21").

a. PERM Applicants

This is excellent news for those employees who were not lucky enough to have started a PERM or I-140 petition within 365 of the expiration of their H-1b visa six (6) year limit AND who are now within sixty (60) days of such expiration of their H-1b visa status. If such employee has an approved PERM application but could not file a concurrent I-140 and I-485 because of the retrogression of the priority dates, he or she can now have their employer file I-140 under premium processing. This will result in the approval of the I-140 within the sixty (60) day period and would then enable the employer to extend their H-1b visa for three (3) additional years.

b. PERM Exempt Applicants

Similarly, if 1) the alien is exempt from filing for PERM because the alien is eligible to file or has filed a Second Preference Employment Based petition (EB-2) under the National Interest Waiver provision; 2) the employee is now within sixty (60) days of the expiration of his maximum stay under H-1b visa; 3) the employee has not had such petition pending for more than 365 days thereby enabling him or her to extend H-1b visa status for one (1) more year; and 3) the employee or alien is not eligible to file a concurrent I-485 application because of the retrogression of the priority dates. Now this alien/employee can convert his case to premium processing thereby getting it approved within such sixty (60) days. This would enable the employer to file for a three (3) year extension of the H-1b visa status pursuant to § 106(c) of AC21.