Expand Premium Processing: Model Legislation for a More Efficient Immigration System

Bureaucratic delays have caused a years-long backlog for legal immigrants seeking permanent residence in the United States. This backlog has also delayed and interrupted work authorization for immigrants eligible to work.[1]

In a 2020 appropriations bill, Congress authorized U.S. Citizenship and Immigration Services (USCIS) to expand premium processing to all applicants, and required it to do so for some categories of applications.[2] But USCIS has taken years to comply and is unlikely to expand premium processing to many of the applicant categories beyond those explicitly required by Congress.[3] Congress can alleviate bureaucratic backlogs, especially for highly skilled immigrants, by requiring that USCIS expand premium processing, which would come at no cost to taxpayers. This paper proposes model legislation to that effect and explains why it is necessary.

From fiscal year 2015 to the third quarter of fiscal year 2023, the number of forms pending review at USCIS has nearly tripled from 3.2 million to nearly 9 million (Figure 1).[4] These are petitions sent to USCIS by immigrants or Americans on their behalf that include applications to hire a high-skilled immigrant, to allow a family member to immigrate, to seek asylum, to ask for a work permit if eligible, to be naturalized, and other requests.

The practical consequence of the processing backlog is that millions of immigrants risk losing their legal status and/or employment because of the untimely processing of their paperwork. The processing backlog also fuels the border crisis, as more pending asylum claims mean that immigrants have an incentive in the meantime to falsely claim asylum in order to extend their stays in the U.S. for years with legal work authorization. Another consequence is that the U.S. is unable to capitalize on the talent of immigrants who are eligible to work but take longer to be processed, or who never attempt to emigrate to the U.S. due to long waits and agency mismanagement.

However, the processing backlog is even worse than these details suggest. USCIS receives more applications than it adjudicates year after year, but the time it takes to adjudicate each form is also getting longer and longer, making the task of eliminating the backlog increasingly difficult.

In 2019, important forms—like I-485, which an immigrant files to adjust his or her status to permanent resident—took just one hour and 38 minutes to adjudicate. Now, it takes two hours and five minutes to process the same form.[5] A whopping 80% of all forms with reported average adjudication times took more time to review in 2023 than they did in 2019 (Figure 2). This means that the same backlog that would take 8.2 million hours of work to process at 2019 speeds now can take more than 10 million hours to process.

While the Covid-19 pandemic contributed to these recent increases in processing delays, it is a long-standing trend that continues. Increased processing times during the Biden administration also debunks the argument that this delay occurred during the Trump administration simply because it imposed stricter standards. Simply put, the backlog of pending applications of all types is growing because more applications are being filed, the agency has failed to grow its processing capacity to keep up with demand, and USCIS is taking longer to review them.

Premium processing was first introduced in 2001 for certain employment-based petitions and applications, and expanded over time.[6] This service allows petitioners to pay USCIS an additional fee—on top of the regular fee it required to process their application—in exchange for guaranteed responses within a certain number of days. The deadline varies by form but never exceeds 45 days.

This additional fee revenue allows USCIS to hire more employees to review forms and benefits both the premium processing petitioners and regular petitioners by increasing the number of reviewers available for the same number of overall petitions.

The Emergency Stopgap USCIS Act of 2020[7] required the agency to expand premium processing to certain employment-based petitions not already covered. It also authorized the agency to expand this service to all benefits it deemed appropriate. But government agencies are part of government, after all. Agencies must comply with the law, but they have little to no incentive to go above and beyond it.

The model legislation proposed in this brief requires USCIS to develop and execute a plan to implement premium processing for all immigration benefits within five years. By giving immigrants the option to pay an additional fee for quicker resolutions, we can guarantee that those who need quick replies receive them, sorting applications by need and ability without hurting those who do not pay a fee.

Part of the solution to reducing the backlog is also to reduce unnecessary applications—chief among which are work authorization requests for immigrants already authorized to work. These immigrants need to file form I-765 to obtain a work permit. As I explained in a previous Manhattan Institute report[8] on reducing immigration backlogs, the I-765 form could almost be discontinued by allowing more than 90% of those who file this form to use alternative means to prove work authorization. For example, applicants could use their visa stamp and approval notices to prove their legal status.

Reducing the use of the I-765 form would immediately cut up to 3% of the hourly workload of USCIS adjudicators.[9] Most importantly, it would guarantee that millions of immigrants do not miss days of work due to bureaucratic delays, increasing economic output and tax revenue.

This model legislation requires USCIS to provide qualified immigrants with alternative means to verify work authorization. The qualified statuses include:

• Refugees admitted through the U.S. resettlement program, who could use their I-94 form
• Temporary Protected Status recipients, who could use their I-821 form approval notice
• Immigrants adjusting their status to permanent resident with an approved employer or family petition, who could also use their I-140 or I-130 approval notices
• H-4 spouses of H-1B workers with an approved I-140 petition, who could use their I-140 approval notice
• Family members of foreign diplomats and employees of international organizations, who could use their I-94 form
• F-1 international students on optional practical training (OPT), who could use their I-20 form, which is signed and approved by their school[10] 
• J-2 dependent visa holders, who could use their I-94 form

To calculate proposed premium processing fees (Table 1) for new immigration benefits not currently covered—as well as timelines—I extrapolate from the current premium fee of $2,500 for I-140 and the current adjudication time of 1.41 hours.[11]

Table 1

Proposed Expanded Premium Processing Fees and Timelines

Form	Purpose	Hours of Workload	Proposed Premium Processing Fee	Premium Timeline, in Days
I-90	Replacing green card	0.15	$300	7
I-129F	U.S. citizen requesting permanent residency for a spouse	0.91	$1,650	30
I-130	U.S. citizen or permanent resident requesting permanent resident status for eligible family members	1.11	$2,000	30
I-131	Application for a travel document or advanced parole to re-enter the United States	0.29	$550	15
I-485	Adjusting to permanent resident status for all categories, including employment and family-based	2.08	$3,700	30
I-526	EB-5 millionaire investors wishing to move permanently to the United States	20.69	$40,000	45
I-751	Removing conditionality of permanent residency for spouses of U.S. citizens after two years of marriage	1.54	$2,800	30
I-829	EB-5 millionaire investors removing conditions on their permanent residency to remain in the United States	15.86	$30,000	45
I-924	Regional investment centers seeking designation for the first time so that EB-5 investors can pool their capital in these investment opportunities	108.5	$200,000	45
I-924A	Regional investment centers seeking annual certification to maintain status	4.6	$8,200	45
N-400	Naturalization application	1.51	$2,700	30

My previous report on reducing the immigration backlog showed that this measure would raise more than $4.3 billion annually after full implementation, drawing down the immigration processing backlog to zero within five years. But this updated fee schedule would raise a total of over $5.2 billion in revenue annually for USCIS, a larger sum reflecting longer adjudication time estimates. Assuming that these measures are implemented within five years as this model legislation requires, it would take a further five years to eliminate the backlog of applications.

There are two main criticisms of expanding premium processing.

First, critics claim it is unfair to allow wealthy immigrants to jump the queue. But the current immigration system already discriminates based on financial capacity. Immigrating to the U.S. is not free. It is very costly, with many if not tens of thousands of dollars spent on legal and government fees for an entire immigration journey. Expanded premium processing simply provides those who have the desire and the ability an option to have their applications processed faster at no detriment to other applicants. In fact, given the revenue expanded premium processing would raise, we can expect processing times for nonpremium petitions to fall, as I estimated in my previous report.[12] 

Second, critics claim it would overwhelm USCIS to expand premium processing for all applications and that this should be a limited program, not a universal one. Expanding premium processing to all categories of immigration benefits would indeed overwhelm USCIS, but only if the change is made to all categories at the same time. That’s why this model legislation requires a five-year plan for implementation within 180 days of enactment, upon which USCIS can hire the number of additional employees required in this timeframe, especially if it uses some of the time-savings from the elimination of I-765 filings to drive efficiency. As USCIS did with premium processing expansion in the last two years, the agency can phase-in premium processing for older applications and smaller categories of applicants first, then expand to new applications over time.

While premium processing began as an option with limited scope, one of the goals of a functioning legal immigration system is to give timely decisions to applicants. This solution would guarantee that all applicants have a guaranteed quick-response option that puts us in line with other developed nations like Canada, Australia, and the United Kingdom.

To amend the Immigration and Nationality Act to expand premium processing for certain immigration benefits, and to reduce administrative burdens.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. Short Title

This Act may be cited as the “Resolute Acceleration of Processing of Immigration Documents Act,” or RAPID Act.

Section 2. Purposes

The purposes of this Act are as follows:

(1) To accelerate bureaucratic processing of legal immigration benefits at no cost to taxpayers

(2) To ensure American citizens are able to employ immigrants and reunite with their foreign-born family members in a timely way that prioritizes those most capable of supporting themselves

(3) To boost the economic benefits from legal immigration by guaranteeing that immigrants can begin working earlier, do not experience breaks in their legal work authorization, and can change status to the one that they seek if they are qualified

Section 3. Expansion of Premium Processing

(a) In General.—Section 286(u) of the Immigration and Nationality Act (8 U.S.C. 1356(u)) is amended to read as follows:

(u) Premium fee for certain immigration benefit types.—

(1) In General.—The Secretary of Homeland Security is authorized to establish and collect a premium fee for the immigration benefit types described in paragraph (2). Such fee shall be paid in addition to any other fees authorized by law, deposited as offsetting receipts in the Immigration Examinations Fee Account established under subsection (m), and used for the purposes described in paragraph (4).

(2) Immigration Benefit Types.—Subject to reasonable conditions or limitations, the Secretary shall establish a premium fee under paragraph (1) in connection with—

(A) Employment-based nonimmigrant petitions and associated applications for dependents of the beneficiaries of such petitions;

(B) Employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), or (3) of section 203(b);

(C) All applications to change or extend nonimmigrant status;

(D) All applications for employment authorization;

(E) Family-sponsored immigrant petitions filed by or on behalf of aliens described in paragraph (1), (2), (3), or (4) of section 203(a) and immediate relative immigrant petitions filed by or on behalf of aliens described in section 201(b);

(F) Alien fiancé(e) nonimmigrant petitions filed by or on behalf of aliens described in section 214(d);

(G) Applications to register as a permanent resident or adjust status described in section 204;

(H) Any and all applications to replace or renew permanent resident cards or their future equivalents, if any;

(I) Investor employment-based immigrant petitions filed by or on behalf of aliens described in paragraph (5) of section 203(b);

(J) Petitions to remove conditions on permanent residence for alien spouses of U.S. citizens and any other alien as described in section 216;

(K) Petitions to remove conditions on permanent residence for investor immigrants and any other alien as described in section 216A;

(L) Applications to certify regional centers for the purposes of the EB-5 immigrant investor program as described in subparagraph (E) of paragraph (5) of section 203(b);

(M) Applications to recertify regional centers previously certified for the purposes of the EB-5 immigrant investor program as described in subparagraph (E) of paragraph (5) of section 203(b);

(N) Naturalization applications described in Title III of the Immigration and Nationality Act;

(O) Travel document or advance parole applications and

(P) Any other immigration benefit type that the Secretary deems appropriate for premium processing.

(3) Amount of Fee.—

(A) In General.—Subject to subparagraph (C), with respect to an immigration benefit type designated for premium processing by the Secretary on or before August 1, 2020, the premium fee shall be $2,500, except that the premium fee for a petition for classification of a nonimmigrant described in subparagraph (H)(ii)(b) or (R) of section 101(a)(15) shall be $1,500.

(A) Specific Fees.—Subject to the specific categories enumerated in section 3, subsection (2) above, the premium processing fees and premium processing timelines shall be as follows:

(a) For a petition for classification under section 101(a)(15) under subparagraphs (E), (H), (I), (J), (L), (O), (P), (R), of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) except those under subsection (b) below, or a petition for classification under section 203(b) of such act (8 U.S.C. 1153(b)) except those under subsection (i) below, the fee is set at an amount not greater than $2,500 and the required processing timeframe is not greater than 45 days;

(b) For a petition for classification under described in subparagraph (H)(ii)(b) or (R) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), the fee is set at an amount not greater than $1,500 and the required processing timeframe is not greater than 15;

(c) For an application under section 248 of the Immigration and Nationality Act (8 U.S.C. 1258) to change status to a classification described in subparagraph (F), (J), (M) or (Q) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days.

(d) For an application under section 248 of the Immigration and Nationality Act (8 U.S.C. 1258) to change status to be classified as a dependent of a nonimmigrant described in subparagraph (E), (H), (I), (L), (O), (P), or (R) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), or to extend such classification, the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days.

(e) For a petition to obtain a document evidencing employment authorization issued by the Secretary of Homeland Security, the fee is set at $1,500 and the required processing timeframe is not greater than 30 days;

(f) For a petition for classification under section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)), or a petition for classification under section 201(b)(2)(A)(i) and under section 201(b)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1151(b)), the fee is set at an amount not greater than $2,000 and the required processing timeframe is not greater than 30 days;

(g) For a petition for classification under section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)), the fee is set at an amount not greater than $1,650 and the required processing timeframe is not greater than 30 days;

(h) For a petition to adjust status of nonimmigrant to that of a person admitted for permanent resident under section 245(a) of the Immigration and Nationality Act (8 U.S.C. 1255(a)), the fee is set at an amount not greater than $3,700 and the required processing timeframe is not greater than 45 days;

(i) For a petition to renew or replace a border crossing identification card to aliens lawfully admitted for permanent residence under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255), the fee is set at an amount not greater than $300 and the required processing timeframe is not greater than 15 days;

(j) For a petition for classification under section 203(b)(5) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)), the fee is set at an amount not greater than $40,000 and the required processing timeframe is not greater than 45 days;

(k) For a petition to remove the conditional basis of an alien permanent resident status as described under section 216(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1186a(c)(1)), the fee is set at an amount not greater than $2,800 and the required processing timeframe is not greater than 30 days;

(l) For a petition to remove the conditional basis of an alien permanent resident status as described under section 216A(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1186b(c)(1)), the fee is set at an amount not greater than $30,000 and the required processing timeframe is not greater than 45 days;

(m) For a petition to establish a regional center under section 203(b)(5)(E)(iii) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(E)), the fee is set at an amount not greater than $200,000 and the required processing timeframe is not greater than 45 days;

(n) For a petition to recertify the status of a regional center under section 203(b)(5)(G) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(5)(G)), the fee is set at an amount not greater than $8,200 and the required processing timeframe is not greater than 45 days;

(o) For a petition to naturalize under section 334 of the Immigration and Nationality Act (8 U.S.C. 1445(a)) and schedule a citizenship test under section 313 of the Immigration and Nationality Act ((8 U.S.C. 1442), the fee is set at an amount not greater than $2,700 and the required processing timeframe is not greater than 30 days;

(p) For a petition for advance parole or a travel permit under section 212(d)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)(A)) for aliens who submitted an application to adjust status to that of a lawful permanent resident or are approved for Temporary Protected Status, the fee is set at an amount not greater than $550 and the timeframe is not greater than 15 days.

(B) Other Immigration Benefit Types.—With respect to an immigration benefit type designated for premium processing but not described in subparagraph (A), the initial premium fee shall be established by regulation, which shall include a detailed methodology supporting the proposed premium fee amount. the Secretary of Homeland Security.

(C) Biennial Adjustment.—The Secretary may adjust a premium fee under subparagraph (A) or (B) on a biennial basis by the percentage (if any) by which the Consumer Price Index for All Urban Consumers for the month of June preceding the date on which such adjustment takes effect exceeds the Consumer Price Index for All Urban Consumers for the same month of the second preceding calendar year. The provisions of section 553 of title 5, United States Code, shall not apply to an adjustment authorized under this subparagraph.

(4) Use of Fee.—Fees collected under this subsection may only be used by U.S. Citizenship and Immigration Services to—

(A) provide the services described in paragraph (5) to premium processing requestors;

(B) make infrastructure improvements in adjudications processes and the provision of information and services to immigration and naturalization benefit requestors;

(C) respond to adjudication demands, including by reducing the number of pending immigration and naturalization benefit requests; and

(D) otherwise offset the cost of providing adjudication and naturalization services.

(5) Premium Processing Services.—The Secretary—

(A) may suspend the availability of premium processing for designated immigration benefit requests only if circumstances prevent the completion of processing of a significant number of such requests within the required period; and

(B) shall ensure that premium processing requestors have direct and reliable access to current case status information as well as the ability to communicate with the premium processing units at each service center or office that provides premium processing services.

(b) Expansion to New Benefit Requests.—

(1) In General.—Notwithstanding the requirement to set a fee by regulation under section 286(u)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1356(u)(3)(B)), as amended by subsection (a), the Secretary of Homeland Security may set a fee under that section without regard to the provisions of section 553 of title 5, United States Code, if such fee is consistent with the processing fees and premium processing timelines set forth above in paragraph (A) of section (3) and not more than $4,000 subject to the biennial adjustment described above in paragraph (C) of section (3).

(A) For a petition for classification under section 203(b)(1)(C) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(1)(C)), or a petition for classification under section 203(b)(2)involving a waiver under section 203(b)(2)(B) of such Act, the fee is set at an amount not greater than $2,500 and the required processing timeframe is not greater than 45 days.

(B) For an application under section 248 of the Immigration and Nationality Act (8 U.S.C. 1258) to change status to a classification described in subparagraph (F), (J), or (M) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days.

(C) For an application under section 248 of the Immigration and Nationality Act (8 U.S.C. 1258) to change status to be classified as a dependent of a nonimmigrant described in subparagraph (E), (H), (L), (O), (P), or (R) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), or to extend such classification, the fee is set at an amount not greater than $1,750 and the required processing timeframe is not greater than 30 days.

(D) For an application for employment authorization, the fee is set at an amount not greater than $1,500 and the required processing timeframe is not greater than 30 days.

(2) Clarification.—The required processing timeframe for each of the applications and petitions described in paragraph (1) shall not commence until the date that all prerequisites for adjudication are received by the Secretary of Homeland Security.

(c) Other Benefit Requests.—In implementing the amendments made by subsection (a), the Secretary of Homeland Security shall develop and implement processes to ensure that the availability of premium processing, or its expansion to additional immigration benefit requests, does not result in an increase in processing times for immigration benefit requests not designated for premium processing or an increase in regular processing of immigration benefit requests so designated.

Section 4. Reporting and Implementation Requirements

(a) The Secretary of Homeland Security shall implement premium processing for all the immigration benefits described in section 3 and other requirements listed in this section within five years and 180 days from the enactment of this bill.

(b) In General.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall provide to the appropriate Committees a 5-year plan, including projected cost estimates, procurement strategies, and a project schedule with milestones, to accomplish each of the following:

(1) Establish electronic filing procedures for all applications and petitions for immigration benefits.

(2) Accept electronic payment of fees at all filing locations.

(3) Issue correspondence, including decisions, requests for evidence, and notices of intent to deny, to immigration benefit requestors electronically.

(4) Improve processing times for all immigration and naturalization benefit requests.

(5) Exempt the following immigrants and nonimmigrants from filing Form I-765 work authorization requests and require the provision of alternative proof of work authorization that does not require filing an application with a government agency: refugees, Temporary Protected Status recipients, those adjusting their status to permanent resident with an approved employer or family petition, H-4 spouses of H-1B workers with an approved I-140 petition, family members of foreign diplomats, F-1 international students on optional practical training, J-2 dependents, and family members of employees of international organizations.

(c) Semi-Annual Briefings.—Not later than 180 days after submission of the plan described in paragraph (1), and on a semi-annual basis thereafter, the Secretary shall advise the appropriate Committees on the implementation status of such plan.

(d) Appropriate Committees Defined.—In this section, the term “appropriate Committees” means—

(1) the Committee on Appropriations, the Committee on the Judiciary, and the Committee on Homeland Security of the House of Representatives; and

(2) the Committee on Appropriations, the Committee on the Judiciary, and the Committee on Homeland Security and Governmental Affairs of the Senate.

Section 5. Determination of Budgetary Effects

The budgetary effects of this Act, for the purpose of complying with the Statutory Pay-As-You-Go Act of 2010, shall be determined by reference to the latest statement titled “Budgetary Effects of PAYGO Legislation” for this Act, submitted for printing in the Congressional Record by the Chairman of the House Budget Committee, provided that such statement has been submitted prior to the vote on passage.

Please see Endnotes in PDF

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