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Biometrics Requirement to Be Suspended for Certain Form I-539 Applicants

5 May

U.S. Citizenship and Immigration Services (USCIS) recently announced that beginning May 17, 2021, the agency will suspend the biometrics requirements for Form I-539 applicants seeking H-4 and L-2 classifications and Form I-539 applicants who are dependents of those holding E-1, E-2, and E-3 status. The suspension will apply to all qualifying I-539 applications filed after May 17 and those who have already filed an I-539 but have not yet received a biometrics appointment notice. By its terms, the suspension will automatically expire on May 17, 2023, though a future renewal of the suspension or even an indefinite reinstatement of the requirement is possible. 

As background, in March 2019, USCIS implemented a new requirement that all I-539 applicants appear in person at a USCIS Application Support Center (ASC) to provide photos and fingerprints before their applications could be approved. This new procedure marked a drastic change from prior practice and inserted an additional required step into the application process for extension and change of status requests. The new biometrics requirement was being applied to those who had already been inspected and admitted into the United States in certain nonimmigrant categories, including H-4, L-2, and E dependents. The additional requirement added expense and delay to what was previously a more straightforward application process. 

The foreseeable consequence of this significant procedural change was a substantial increase in USCIS adjudication times for these I-539 filings, with processing delays up to 10-12 months in certain circumstances. Another impact was USCIS’s inability to adjudicate dependents’ Forms I-539 together with the principal beneficiary’s extension petition. The lack of simultaneous adjudication has been especially irksome for some applicants when the primary petition was eligible for and filed with a request for Premium Processing upon payment of the significant government Premium Processing filing fee of $2,500. 

The biometrics requirement has also caused significant delays in the adjudication of Form I-765, Application for Employment Authorization, based on Forms I-539 filed for H-4, L-2, and E dependent spouses. Because the I-765 adjudication depended on the I-539 adjudication, any delay in I-539 adjudication has resulted in a corresponding delay in I-765 adjudication. In many cases, such delays have led to gaps in work authorization between expiration of the prior EAD card and issuance of the new one. 

Biometrics appointment delays for all applicants have been more extreme during the COVID-19 pandemic due to associated closures of ASC office and cancelations of biometrics appointments that began in March of 2020 and persisted for several weeks. Continued operation at reduced staffing levels has left ASCs with the capacity to service fewer appointments since reopening last year. 

USCIS has not yet indicated when the dependent I-539 applications may again be adjudicated together with the principal beneficiary’s extension petitions. There is also not yet any indication as to whether or when the USCIS will return to the previous practice of concurrently adjudicating a dependent’s I-539 that was concurrently filed with a principal beneficiary’s petition via the Premium Processing service. 

The current number of backlogged Forms I-539 for H-4 and L-2 spouses exceeds 120,000, and the current number of backlogged Forms I-765 for H-4 and L-2 spouses approaches 60,000. USCIS has indicated that they will initially adjudicate dependent I-539 cases utilizing a first-in, first-out methodology, meaning that USCIS will seek to clear out the significant backlogs prior to potentially resuming concurrent adjudication of I-539 applications. 

Foster will continue to monitor changes in USCIS procedures and will provide updates as appropriate via our firm’s website at