USCIS Suspends Biometrics Requirement for Certain Form I-539 Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced that it will no longer require biometrics to be completed by accompanying dependents seeking to change or extend their status in E-1D, E-2D, E-3D, H-4 or L-2 status effective May 17, 2021. 

Moving forward, USCIS will adjudicate the Form I-539, Application to Extend/Change Status, for these foreign nationals based on biographic information and related background checks without scheduling an appointment to capture biometrics. That said, if you have already received an appointment for your biometrics appointment, you should still attend your scheduled appointment. 

Background:  USCIS introduced the biometrics requirement for all accompanying dependents who wanted to change or extend their status in March 2019.  Since then, the processing delays for these applications have grown exponentially.  These delays also slowed down the ability of certain dependent spouses  to obtain work authorization because the Form I-539 and the Form I-765, Application for Employment Authorization, are often filed together, but the application for employment authorization cannot be approved until the underlying change or extension of status is approved.   Furthermore, where dependent spouses are applying to extend work their authorization, the regulations do not automatically extend their work authorization for 180 days while the renewal application is pending (very unreasonable).  These delays have been exacerbated by the temporary closures and capacity limitations at Application Support Centers, which conduct the biometrics appointments, due to COVID-19. 

USCIS was sued for these delays: As processing times worsened and the various barriers seriously jeopardized the ability of many dependent spouses to work, a lawsuit was filed by spouses in H-4 and L-2 status whose applications for employment authorization had been pending for more than a year.  This litigation proved extremely effective as it forced USCIS to reevaluate the necessity for biometrics and ultimately the agency’s announcement today to suspend the requirement until May 17, 2023. 

Premium Processing for these Applications?  Looking ahead, USCIS hopefully will reconsider premium processing these applications with the primary spouse’s petition if it has been filed with Premium Processing.  Before the biometrics requirement was introduced in March 2019, the I-539s were also premium processed with the primary spouse’s temporary employment-based petition.  The separation of these applications from the adjudication of the primary spouse’s petition has caused tremendous confusion and uncertainty for these families.  Implementing Congress’ authorization to expand premium processing to Form I-765, Application for Employment Authorization, also will preserve these dependent spouses’ ability to work (and the sanity of their employers!).  

The agency has been working hard to eliminate the various barriers to predictable adjudication of benefits. 

This alert is for informational purposes only. Please contact me if you would like to discuss this development further.

Nadia Yakoob