USCIS Temporarily Suspends Biometrics Requirement for Certain Form I-539 Applicants
- Beginning March 2019, USCIS required certain Form I-539 applicants and co-applicants to appear in person at an ASC to submit their biometrics
- In March 2020, USCIS temporarily suspended in-person services at its field offices, asylum offices, and ASCs to help slow the spread of COVID-19
- Although ASCs have since reopened to the public, they are not yet operating at full appointment capacity due to necessary COVID-19 health and safety protocols
- These temporary closures and capacity limitations at the ASCs, accompanied by other processing delays, created a substantial volume of cases awaiting biometrics appointments at ASCs
- The significant volume of pending cases related to Form I-539 are particularly impacting the timeframe for USCIS to adjudicate the related employment authorization applications (Form I-765, Application for Employment Authorization) for H-4 nonimmigrants (spouses and children of H-1B nonimmigrants), L-2 nonimmigrants (spouses and children of L-1 nonimmigrants), and certain E nonimmigrants (dependents of E-1, E-2, and E-3 principal nonimmigrants)
In Order to Find a Temporary Solution to This Problem: USCIS Temporarily Suspended Biometrics Requirement for Certain Form I-539 Applicants
“Effective May 17, 2021, U.S. Citizenship and Immigration Services will temporarily suspend the biometrics submission requirement for certain applicants filing Form I-539, Application To Extend/Change Nonimmigrant Status, requesting an extension of stay in or change of status to H-4, L-2, and E nonimmigrant status. USCIS will allow adjudications for those specific categories to proceed based on biographic information and related background checks, without capturing fingerprints and a photograph. This suspension will apply through May 17, 2023, subject to affirmative extension or revocation of the suspension period by the USCIS director.”
Who is Eligible For This Exemption?
This temporary suspension will apply to applicants filing Form I-539 requesting the following:
- Extension of stay in or change of status to H-4 nonimmigrant status;
- Extension of stay in or change of status to L-2 nonimmigrant status;
- Extension of stay in or change of status to E-1 nonimmigrant status;
- Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor)); or
- Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D).
This suspension will apply only to the above categories of Form I-539 applications that are either:
- Pending as of May 17, 2021, and have not yet received a biometric services appointment notice; or
- New applications postmarked or submitted electronically on or after May 17, 2021
- USCIS retains discretion on a case-by-case basis to require biometrics for applicants who meet the criteria above, and any applicant may be scheduled for an application support center (ASC) appointment to submit biometrics
- Form I-539 applicants who have already received a biometric services appointment notice should still attend their scheduled appointment
What About the Service Fee?
- Effective May 17, 2021, Form I-539 applicants meeting the criteria above are not required to submit the $85 biometric services fee for Form I-539 during the suspension period
- USCIS will return a biometric services fee if submitted separately from the base fee
- USCIS will allow a short grace period during which USCIS will not reject Form I-539 filed with the biometric services fee
- USCIS will begin rejecting paper Form I-539 applications postmarked May 27, 2021, or later (while this suspension of the biometrics requirement is in effect), if applicants meeting the above criteria submit a single payment covering both the filing fee and the $85 biometrics services fee
- If USCIS rejects the paper application because the applicant included the $85 biometrics service fee after the grace period, the applicant will need to re-file Form I-539 without the biometric services fee
The Class Action Lawsuit:
- There have been unprecedented delays with the H4 and L2 processing times due to the Introduction of Biometrics Requirements introduced by the Trump Administration
- These delays directly impacted H4 EAD and L2 EAD Processing times and many have lost jobs due to these unforeseeable delays
- On March 22, 2021, AILA and Wasden Banias, LLP filed a class-action lawsuit against DHS challenging the processing delays on extensions of status and EADs for L-2 and H-4 visas
- 91000 people out there suffering from this delay, what could have been a fixable problem
- They are spouses of H-1B and L-1 managers who are highly skilled, who have jobs, who are contributing to American society in every possible way
- They’re entitled and deserve to be working and that’s the reason why AILA and Wasden Banias have joined forces to file a class action
- They believed the problem has gone on too long, and they needed to support this cause
According to The Video Transcript of AILA Quick Take #303
“We hope, through the filing of this lawsuit, the administration will come to the table and adopt flexible measures that allow these people to go back to work within 30 to 60 days. It really should happen immediately, there’s no need for biometrics, there’s no need for these ridiculous 18 months of processing delays where it takes maybe 10 minutes to approve, this is the government’s information, 10 minutes to approve the employment authorization or extension of status”
According to Jennifer Minear, President of AILA:
“The delays that H-4 and L-2 nonimmigrants are facing needlessly place families in financial limbo. DHS has the legal tools and authority to grant work authorization to impacted individuals whose financial security is hanging in the balance, and it should immediately begin to use those tools to provide solutions. DHS can and must revoke the unnecessary biometrics requirements for H-4 and L-2 nonimmigrants, provide automatic work authorization while DHS processes EAD renewal requests, and allow EAD applicants to file their renewal applications sooner than 180 days prior to EAD expiration to prevent gaps in work authorization.”
Does that Mean H-4, L-2 and E Immigrants Will Receive Auto-Renewals?
- While DHS regulations provide for an automatic extension of employment authorization for certain EAD renewals, H-4, L-2, and E nonimmigrants are not included in the applicable automatic renewal provisions
- Form I-765 cannot be approved until after the dependent spouse’s underlying H-4, L-2, or E nonimmigrant status is granted or extended upon approval of Form I-539
How Long Will This Suspension Last?
- Suspending biometrics requirements for 24 months for H-4, L-2, and E nonimmigrants filing Form I-539 who meet the criteria above will provide sufficient time for USCIS to address the processing delays that have been exacerbated by limited ASC capacity due to COVID-19 health and safety protocols
- USCIS has decided to suspend biometrics submission for all H-4, L-2, and E nonimmigrants (in other words, both dependent spouses and children) filing Forms I-539
- USCIS will continue to monitor ASC capacity and adjudication processing times for Form I-539 and Form I-765 and may adjust or extend this suspension as circumstances change
Special Note About USCIS Authority To Require Biometrics
- USCIS has general authority to require the submission of biometrics from applicants, petitioners, and beneficiaries for immigration or naturalization benefits or requests
- The Immigration and Nationality Act (INA) at section 103(a), 8 U.S.C. 1103(a), provides general authority for DHS to collect or require submission of biometrics
- DHS regulations provide specific authority to require biometrics submission at 8 CFR 103.2(b)(9) and 103.16
We do not have accurate data about the days it will really take to get your EAD. We will keep you posted on the number of days it is really taking without biometrics when we hear back from our clients.
The Original press release could be found here.
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