United States: USCIS Extends Temporary Suspension of Biometrics Collection for Some H-4, L-2, and E Derivative Applicants; Confirms Forthcoming Permanent Biometrics Exemption for All I-539 Applicants
April 19, 2023
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At a glance
- Through September 30, 2023, USCIS will continue to suspend the biometrics collection requirement for applicants seeking H-4, L-2, and E derivative changes of status and extensions of stay on Form I-539. The temporary suspension had been set to terminate on May 17, 2023.
- According to USCIS, in the coming months, the agency will create a permanent biometrics exemption for all Form I-539 applicants.
A closer look
U.S. Citizenship and Immigration Services (USCIS) is extending its suspension of the biometrics requirement for those seeking H-4, L-2 and E derivative changes of status and extensions of stay in the United States. The suspension will remain in place through September 30, 2023. During this time, applicants filing Form I-539 for H-4; L-2; or E-1, E-2, or E-3 derivative status will not be required to attend a USCIS biometrics appointment for the capture of their fingerprints and photo. However, USCIS reserves the right to require biometrics on a case-by-case basis if deemed necessary.
In today’s announcement, USCIS also confirmed its plan to permanently eliminate the biometrics requirement for all Form I-539 applicants. According to the agency, the permanent exemption will be established in the coming months. The policy change was previously announced in the USCIS Fiscal Year 2022 Progress Report, released in December 2022.
Background on the Form I-539 biometrics policy
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 the biometrics collection for H, L, and E derivatives for a period from May 17, 2021 through May 17, 2023. Since that time, affected I-539 applications have been adjudicated using biographic information and background checks, as was agency policy prior to March 2019. Today’s USCIS announcement extends that practice through at least September 30, 2023.
Relatedly, in a January 2023 Edakunni settlement agreement, USCIS agreed to resume its practice of processing H-4 and L-2 applications for extensions of stay and changes of status and accompanying Form I-765 applications for spousal work authorization together with the principal’s Form I-129 petition, as long as the forms are concurrently filed. In combination with the biometrics suspension, the policy change has helped reduce processing times for many H-4 and L-2 applicants.
What this means for foreign nationals
The biometrics suspension should continue to alleviate some of the processing backlogs facing I-539 applicants as well as for corresponding work authorization that depends on obtaining spousal nonimmigrant status. Though a November 2021 change in USCIS policy eliminated the need for L-2 and E derivative spouses to obtain an employment authorization document (EAD) in order to legally work, it is still required that the spouses first obtain approval of their derivative nonimmigrant status, as their work authorization is “incident to status.” Eligible H-4 spouses still require an EAD to work; therefore, faster approval of their Form I-539 extension or change of status request will make it possible for their Form I-765 employment authorization application to be processed more quickly.
Because USCIS retains the discretion to require biometrics in an individual case, Form I-539 applicants who receive a USCIS biometrics appointment notice despite the extended suspension policy should plan to attend their appointment. Failure to attend a biometrics appointment can result in the application being deemed abandoned.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
