United States: Starting October 1, USCIS Eliminates Biometrics Fee and Routine Biometrics Collection for I-539 Applicants

USCIS began collecting biometrics from Form I-539 applicants in March 2019 under the Trump administration. Processing times increased for these applications and for any corresponding H-4, L-2, and E spousal work authorization. As a result of negotiations in a lawsuit challenging lengthy processing delays for H-4 and L-2 applicants (Edakunni, et al. v. Mayorkas), USCIS temporarily suspended biometrics collection for H, L, and E derivatives for a period from May 17, 2021 through September 30, 2023. During this time, affected I-539 applications are adjudicated using biographic information and background checks, as was agency policy prior to March 2019. Today’s USCIS announcement extends that policy to all Form I-539 applicants as a permanent policy change, starting October 1.

In several public statements within the last year, USCIS has confirmed its plan to permanently eliminate the biometrics requirement for all Form I-539 applicants. The policy change was announced in the USCIS Fiscal Year 2022 Progress Report, released in December 2022, and then in April 2023, when the agency extended its H-4/L-2/E dependent biometrics suspension to September 30, 2023.

Forms I-539 postmarked on or after October 1, 2023 should include a Form I-539 only; a biometrics fee should not be included. However, USCIS has provided guidance on how it will handle applicant errors in biometrics fee payment on or after October 1, as follows:

• If an applicant mistakenly submits the biometric services fee and the payment is submitted separately from the Form I-539 fee, USCIS will return the biometric services fee and accept the Form I-539.
• If an applicant mistakenly submits the biometric services fee and the payment is combined with a paper-based Form I-539 filing fee, this is considered an incorrect filing and USCIS will reject the Form I-539.
• If an applicant mistakenly authorizes a credit card payment that combines the biometric services fee with the application fee, USCIS will accept the application and only charge the application fee. 

The change in biometrics policy will alleviate some of the processing backlogs that face the full range of I-539 applicants, including B, TD, and O and P dependents. It will also continue to alleviate the backlogs for I-539 applicants already benefitting from a temporary suspension – those seeking H-4, L-2, and E derivative changes of status and extensions of stay – whose temporary biometrics suspension had been due to expire on September 30, 2023. For these individuals, faster Form I-539 adjudication also impacts any corresponding work authorization that depends on their spousal nonimmigrant status.  

It is important to note that Form I-539 applicants who receive a USCIS biometrics appointment notice even after the change in policy should attend their appointment. USCIS may have utilized its discretion to require biometrics for their individual application, and failure to attend a biometrics appointment can result in the application being deemed abandoned.