USCIS to Suspend Biometrics Requirement for Certain Nonimmigrant Dependent Applications

On May 3, 2021, U.S. Citizenship and Immigration Services’ (USCIS) acting associate director of the Service Center Operations Directorate, Connie L. Nolan, indicated in a court filing that USCIS is finalizing a policy that will temporarily suspend the requirement to submit biometrics for certain individuals filing Form I-539, Application to Extend/Change Nonimmigrant Status. The suspension will be applicable to individuals requesting extensions of stay or changes of status for H-4, L-2, and certain dependent E nonimmigrant visa holders. The suspension is expected to begin on May 17, 2021.

The change in policy comes in response to the unprecedented processing backlog of Form I-539 applications that USCIS is currently experiencing. USCIS also cited the backlog’s domino effect of inevitably delaying the processing of Form I-765, Application for Employment Authorization, for the impacted visa holders.

Background

On March 11, 2019, USCIS began requiring all individuals submitting Forms I-539 to comply with biometric screening requirements as part of the application process. The additional processing step contributed to processing delays for these applications, as well as for accompanying Forms I-765. Numerous lawsuits were filed against USCIS challenging the processing times as unreasonable.

In a May 3, 2021, sworn statement, Nolan referred to the significant backlog in the processing of these applications, specifically that “[t]he current number of Form I-539s for H-4 and L-2 spouses in the backlog is approximately 123,000” and that “[t]he current number of Form I-765s for H-4 and L-2 spouses in the backlog is approximately 57,500.”

Temporary Suspension of Biometric Submission Requirements

The temporary suspension will begin on May 17, 2021, and be in effect for at least 24 months. It is expected that the suspension will expire automatically after May 17, 2023, subject to an affirmative extension or revocation by the USCIS director. USCIS will retain discretion on a case-by-case basis to require biometrics from any applicant.

Application Processing

The suspension will apply only to H-4, L-2, E-1, E-2, and E-3 categories of Form I-539 applications that are

• pending on or before May 17, 2021, (the effective date of the policy) and have not yet received a biometric services appointment notice; and
• new applications received by USCIS between May 17, 2021, and May 17, 2023 (the automatic expiration date), subject to affirmative extension or revocation by the USCIS director.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.