Business Immigration Insights

Since March 2019, all applicants who file Form I-539 Application To Extend or Change Nonimmigrant Status have been required to appear for biometrics appointments so that US Citizenship & Immigration Services (USCIS) can compare their biometric data against their identity documents and forward the data to the FBI for security screenings.

Why Is USCIS Taking Fingerprints from Applicants for Temporary Status?  According to USCIS, this new biometric requirement is to aid in identifying threats to public safety and national security, and to protect the integrity of the immigration system under President Trump’s Protecting the Nation From Foreign Terrorist Entry into the United States executive order.  There are no exemptions:  minors, including infants, and the elderly are required to comply.

What Impact Will This Have on Processing Times?  Many nonimmigrants use Form I‑539 to change or extend status without having to leave the US, including the spouses and children of professional workers in H-1B or L-1 status.  Within certain criteria, these H-4 and L-2 spouses are eligible to apply for Employment Authorization Documents (EADs) that are valid for up to two years at a time.  Spouses frequently file their EAD applications along with their Forms I-539 in order to extend both status and employment authorization at the same time.  The new biometrics requirement has added months of processing time to both types of applications because:

• USCIS no longer extends its prior courtesy of adjudicating dependent applications within 15 days when an employer filed its own petition requesting premium processing on behalf of the H‑1B or L‑1 worker; and
• Adjudication is now dependent on security screenings conducted by an outside agency (the FBI). As a result, what once took 15 days is now taking 3 months, and counting.

Because the biometrics requirement is relatively new, processing data is insufficient to get a good sense of how much longer than 3 months these applications may take.  However, USCIS Service Centers are currently reporting processing times of 2.5 to 8.5 months.  Whether this broad time range will match actual practice remains to be seen.

How Will Dependents Show Ongoing Status and Employment Authorization to Driver’s License Offices and Employers?  If logistics or finances are not a consideration, it may become more appealing for dependents to renew their visas abroad, based on the principal worker’s already extended status, rather than filing extension applications with USCIS.  The majority of visa applications at U.S. consulates are processed within 2 weeks, and when dependents return to the US with their new visas, their status is automatically extended on admission.  However, in a relatively small – but growing – number of cases, “administrative processing” may delay visa issuance for up to 6 weeks or longer.

Even with quick visa issuance, it is not clear whether a spouse’s EAD renewal application, which must still be filed with USCIS after the spouse re-enters the US, will be processed any faster than if the spouse simply remained in the US and filed both EAD and extension applications with USCIS.  Therefore, H-4 and L-2 nonimmigrant spouses who are considering this alternative should consult with an immigration attorney to determine the best strategy to accomplish their desired outcome.