24-Month Biometrics Suspension Proposed for May 17, 2021

In March, the American Immigration Lawyers Association (AILA) with a partner law firm, filed a class action complaint with the U.S. District Court Western District of Washington, alleging that: “More than 91,000 people have lost their jobs because the Department of Homeland Security has not done its job.” The complaint questions USCIS delays in processing extensions of status and employment authorization documents (EAD) for H-4 and L-2 nonimmigrant spouses of H-1B and L-1 visa holders, respectively. The complaint cites multiple H-4 and L-2 spouses who have lost their jobs because of biometrics appointment delays and processing delays.

As part of the ongoing litigation, USCIS submitted a declaration in Edakunni v. Mayorkas litigation, announcing a plan to suspend biometrics requirements for certain I-539 applicants for two years. The 24-month suspension is proposed to begin May 17, 2021, and last through May 23, 2022, unless extended by USCIS. The agency has not made any official announcements of this change in policy.

On May 4, 2021, the Acting Associate Director of Service Center Operations for USCIS, Connie Nolan, submitted a declaration stating:

• Recently, USCIS has undertaken a variety of adjudicative actions to aggressively address the backlog. Service centers currently have approximately 120 officers adjudicating Form I-539 for the H-4 and L-2 classifications with another 33 officers scheduled for training in May 2021. In the past 60 days, service centers completed approximately 25,000 related to H-4 and L-2 spouses.
• Additionally, USCIS is finalizing a policy that will temporarily suspend biometrics submission requirements for individuals filing Form I-539 to request an extension of stay in or change of status to H-4, L-2 and certain E nonimmigrants due to the extended processing times resulting from limited ASC capacity due to ongoing COVID-19 health and safety protocols.
• Expected to begin on May 17, 2021, the new policy suspending biometrics submission requirements for the H-4, L-2 and E nonimmigrants is intended to be in effect for 24 months, and is intended to automatically expire after May 17, 2023, subject to affirmative extension or revocation by the USCIS Director.
• The suspension of biometrics is intended to apply only to H-4, L-2 and E-1, E-2 and E-3 categories of Form I-539 applications that are pending as of the effective date of the policy and have not yet received a biometric services appointment notice, and new applications received by USCIS after the effective date of the policy through the stated expiration date, subject to affirmative extension or revocation by the USCIS Director.
• USCIS 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.

Extension Filing Tips

We could see processing times speed up once biometrics appointments are no longer required across the board. EADs could be issued faster not only for dependent spouses but for I-485 applicants who are also competing for biometrics appointments at the USCIS Application Support Centers. It may take a few months for USCIS to address the existing appointment backlogs. In the meantime, here are some tips for filing your extension:

• File your extension as soon as you are statutorily eligible to do so.
• If you receive multiple biometrics appointment notices, attend the earliest and bring all appointment notices with you.
• If you are filing your H-4 or L-2 extension, please continue to include biometrics fees until USCIS makes a formal announcement of the policy change and its effective date.
• Plan to attend all scheduled biometrics appointments, unless directed not to by USCIS and your legal representative. If you miss a scheduled appointment, your case could be denied.
• If you receive a biometrics appointment after the proposed May 17 effective date, plan to attend the appointment. USCIS states it retains the discretion to require biometrics for any case.

Additional Biometrics Update

The Department of Homeland Security has withdrawn a proposed rule that would have expanded department authorities and requirements for collecting biometrics by removing age restrictions; requiring submission of biometrics for every applicant, petitioner, sponsor, beneficiary, or other individual filing for or associated with any immigration or naturalization benefit or request unless DHS waives or exempts the biometrics requirement; codifying the authority to use DNA test results; and authorizing the use of additional types of biometric modalities.

DHS announced its decision to withdraw the proposed rule, originally published on Sept. 11, 2020, in a Federal Register notice. The withdrawal is consistent with Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, and additional administration priorities to reduce barriers and undue burdens in the immigration system.

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