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Potential Improvements in Processing Times for Certain Nonimmigrant Applications

Jun 9, 2021 | Nonimmigrant Visas

We are anticipating improvements in processing times for certain nonimmigrant applications. As of May 17, 2021, USCIS has temporarily suspended the biometrics requirement and the $85 fee for certain I-539 applicants, citing extreme delays due to temporary closures and capacity limitations brought on by COVID-19 safety protocols.

This temporary suspension is expected to continue until May 17, 2023 and will apply to the following Applications for Extensions of Stay or Change of Status:

  1. H-4 spouses and children of H-1B workers
  2. L-2 spouses and children of L-1 workers
  3. Certain E nonimmigrants

Despite this temporary suspension, USCIS has stated that the agency “will retain discretion on a case-by-case basis to require biometrics, and any applicant may be scheduled for an ASC appointment to submit biometrics for identity verification and other screening purposes.”

Background:

  • On March 11, 2019, USCIS implemented an updated Form I-539, Application to Extend/Change Nonimmigrant Status. 
  • The updated forms included a new biometrics requirement for purposes of “identity management,” despite the availability of this information through biometrics taken at consulates and upon entry into the U.S.
  • In its decision to change the form, USCIS cited then President Trump’s Executive Order 13780, which directed the Department of Homeland Security to expedite “a biometric entry-exit tracking system for in-scope travelers to the United States.”
  • Due to the added burden upon ASC Offices in processing additional biometrics appointments, processing times for I-539 and I-765 applications have risen sharply, with some I-539 petitions pending for up to a year.
  • On January 20, 2021 the Biden Administration formally revoked Executive Order 13780.
  • On March 22, 2021 a class action complaint was filed on behalf of individuals who had experienced a loss or gaps in status and/or employment as a result of the extremely delayed processing times (Edakunni v. Mayorkas).
  • That complaint alleges the updated forms and biometrics requirements were an attempt to appease the Trump Administration, which had been seeking, and failing, to eliminate eligibility for certain H-4 spouses of H-1B workers to obtain temporary work permits.
  • On May 3, 2021, Acting Associate Director of Service Center Operations (SCOPS), Connie L. Noland, submitted a declaration to the court in Edakunni v. Mayorkas, announcing a temporary suspension of biometrics submission requirements for H-4, L-2, and E nonimmigrants, intended to begin on May 17, 2021 and remain in effect for 24 months.  The temporary policy is intended to automatically expire after May 17, 2023.

The litigation in Edakunni v. Mayorkas is still ongoing.

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