04 May 2021

United States

USCIS to Suspend Biometrics Requirement for Certain Nonimmigrant Applications

In 2019, the U.S. Citizenship and Immigration Services (USCIS) implemented a new nationwide requirement that all individuals submitting a Form I-539, Application to Change or Extend Nonimmigrant Status, must provide biometric data as a condition of approval. This immediately increased processing times, as the steps associated with biometrics collection can take several weeks or several months. The biometrics collection also imposed significant burdens on USCIS to schedule and fulfill appointments and staff the Application Service Centers (ASCs) where biometrics were collected. Applicants—particularly H-4 and L-2 dependent spouses—began experiencing processing times as long as six months. This led to gaps in work authorization for spouses in these categories, because EAD applications are not adjudicated until a Form I-539 is approved. The delays and prolonged processing times were then exacerbated in 2020. First, in March, USCIS closed all offices and ASCs to the public due to the COVID-19 pandemic. This put all adjudications requiring biometrics on hold. When ASCs began reopening in July 2020, it was in a phased manner and only at a reduced capacity. As a result, a significant backlog of I-539 cases accrued, and processing times grew to be as long at 12-22 months. By April 2021, USCIS had approximately 123,000 Form I-539 applications for these classifications waiting to be adjudicated—some nearly two years old. 

On May 3, 2021, USCIS filed a sworn declaration in a federal court case, Edakunni v. Mayorkas, which is a class action challenging adjudication delays faced by H-4 and L-2 spouses. The declaration—which was signed by USCIS’s Acting Associate Director of Service Center Operations—states that USCIS is finalizing a policy suspending the biometrics requirements for certain nonimmigrants. The new policy is expected to take effect on May 17, 2021, and will be in place for a period of two years, subject to extension or revocation by the USCIS Direction. The policy will be applied only to H-4, L-2, and E-1, E-2, and E-3 categories of the Form I-539 applications that are (1) pending as of the effective date of the policy and have not yet received a biometric services appointment notice, and (2) new applications received by USCIS on or after the effective date of the policy, through its expiration.  

USCIS has not formally announced the suspension, but is expected to do so as soon as the policy is finalized. USCIS may also provide other guidance about applicants whose biometric services appointments were scheduled and canceled. The litigation declaration indicated that USCIS will begin adjudicating the backlog of cases based on the filing dates of the applications, starting with those that have been pending the longest. 

USCIS is unlikely to issue any refunds for biometrics fees already paid; however, it is expected that the $85 biometrics fee will not be required for I-539 applications in the categories for whom the biometrics requirement is suspended. 

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