USCIS to Require Biometrics for Certain Foreign Nationals Seeking a Change or Extension of Nonimmigrant Status

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At a glance

• Starting March 11, dependents of employment-based nonimmigrants, as well as B-1/B-2 visitors, some F-1 students and certain other nonimmigrants, will be required to appear in person for fingerprinting and photographs when applying for a change or extension of status on USCIS Form I-539.
• A new edition of Form I-539, dated 02/04/19, will become mandatory on March 11.
• The new biometrics requirement is expected to increase processing times for I-539 changes and extensions of stay and related employment authorization applications.   
• The new biometrics policy does not affect cases filed on Form I-129, including H-1B and L-1 petitions.

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The situation

On March 11, USCIS will implement a revised edition of Form I-539, Application to Extend/Change Nonimmigrant Status, dated 02/04/19. The revised form will require most applicants and any family members included in the application to:

• Appear in person at a USCIS Application Support Center to have their biometrics taken (fingerprints, photo and/or digital signature), regardless of age. A biometrics fee of $85 will be required. Previously, biometrics were not required for I-539 applicants; and

• Sign the application to change or extend their status. Parents and guardians will be permitted to sign on behalf of children under 14 or those incompetent to sign. Previously, only the principal I-539 applicant was required to sign the form.

The revised Form I-539 is not yet available to the public. USCIS is expected to publish the new form on March 11, the effective date of the new requirements. Prior editions of Form I-539 will not be accepted after March 10, unless USCIS decides to provide a grace period.

Foreign nationals affected by the change

The following nonimmigrant categories, among others, are required to use the new form and undergo biometrics procedures when seeking a change or extension of status:

• Spouses and children of H-1B, L-1 and other principal employment-based nonimmigrant beneficiaries;
• B-1/B-2 business visitors;
• F-1 students and J-1 exchange visitors, for certain changes and extensions of status (but not changes of status to H-1B, L-1 or another employer-sponsored nonimmigrant category). 

Longer processing times expected

Biometrics collection and related background checks will mean that affected foreign nationals may have to wait longer for USCIS adjudication of their changes and extensions of status. In addition, the processing of applications for employment authorization documents (EADs) filed with Form I-539 could be delayed due to the new biometrics procedures. This includes EAD applications for H-4, L-2 and E spouses.

Impact on FY 2020 H-1B cap season

Under USCIS’s current plans, the new I-539 form will be required for changes of status to H-4 filed by the dependent family members of foreign nationals being sponsored under the FY 2020 H-1B cap, which begins April 1, 2019.   

However, the new I-539 form is not scheduled to be released for public use until just a few weeks before the April 1 start of the FY 2020 cap filing period, and it will take effect immediately. This will leave limited time to prepare H-4 change of status applications before the cap filing period opens. 

The business immigration community is working to make USCIS aware of the impact of the new Form I-539 on time-sensitive H-1B cap cases. Advocates are seeking a grace period to allow employers and their immigration counsel to use an older version of Form I-539 for FY 2020 H-1B cap dependent filings, though this accommodation is not guaranteed.

Fragomen is closely monitoring the impact of the forthcoming Form I-539 on the FY 2020 cap season and will provide updates as developments occur.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.