Confirmed: USICS to Waive Biometrics Requirements for H-4, L-2 and Certain E Status Applications for Period of 2 Years

Update (9/26/2023):  USCIS is removing the biometrics requirement (and fee) for all I-539 applications starting October 1, 2023.   Details here.

USCIS has confirmed policy change that will temporarily suspend the biometrics requirements for certain I-539 applicants for a two-year period beginning on May 17, 2021. The biometrics suspension will apply to the H-4, L-2, and E-1, E-2, and E-3 categories of Form I-539 applications if they are (1) pending on May 17, 2021, and have not yet received a biometric services appointment notice, and (2) are new applications received by USCIS from May 17, 2021 until the policy remains in effect (expected 2 years).

Major Backlog in Biometrics Results Very Long H-4 and L-2 EAD Wait Times

The policy change is, at least partially, a result of an ongoing litigation which challenges USCIS on the extremely long H-4/L-2 EAD wait times. As a result of a 2019 USCIS policy change, each I-539 application requires biometrics appointment and, as a result of COVID, there is a major backlog in biometrics. This means that I-539 applications together with companion H-4 or L-2 EAD work permits are taking extremely long — in many cases, over a year.

For example, as of May 2021, USCIS is reporting that there are 123,000 H-4 and L-2 cases waiting for biometrics and there are 57,500 H-4 or L-2 EAD cases.

The announcement of the upcoming policy change was via a declaration filed as part of this lawsuit. A formal USCIS announcement is expected at any time. It was subsequently confirmed by USCIS release.

Biometrics to be Waived for I-539 Applications Seeking H-4, L-2 and E-1, E-2 and E-3 Only

USCIS will waive biometrics only for I-539 applications seeking H-4, L-2 and E-1 through E-3 change or extension of status. Biometrics will still be required for many other cases such as I-539 applications seeking B-1/B-2, F-1, J-1, and others.

$85 Biometrics Fee No Longer Required for Certain I-539 Applications

Additionally, starting May 17, 2021, Form I-539 applicants seeking certain H-4, L-2 or E-2 benefits are not required to submit the $85 biometric services fee during the suspension period.

There will be a 10-day grace period when after which USCIS will begin rejecting I-539s which include a combined biometrics and I-539 filing fee payment. According to USCIS,

USCIS will begin rejecting paper Form I-539 applications postmarked May 27, 2021, or later (while this suspension of the biometrics requirement is in effect), if applicants meeting the above criteria submit a single payment covering both the filing fee and the $85 biometrics services fee. If USCIS rejects the paper application because the applicant included the $85 biometrics service fee after the grace period, the applicant will need to re-file Form I-539 without the biometric services fee.

Uncertain if USCIS Will Resume Premium Processing Consideration of Concurrent H-4/EAD and L-2/EAD Applications

The declaration suggests that “[a]pplications where the principal nonimmigrant’s Form I-129, Petition for a Nonimmigrant Worker, has been approved will become adjudication ready.” This means that USCIS will be in a position to review and approve such applications immediately.

It is unclear at this time if USCIS will resume their practice of adjudicating concurrent H-4/EAD (or L-2/EAD) applications together with a primary beneficiary’s I-129 (H-1B or L-1) when the primary beneficiary’s petition requests premium processing. Prior to the biometrics policy change in 2019, USCIS would be able to adjudicate a concurrently-filed H-1B, H-4 status and H-4 EAD all at the same time when the H-1B petition requested premium processing. We are hopeful that with the new policy USCIS will resume this practice — we will monitor this development and provide updates as soon as we know more.

Conclusion

Our office will continue to monitor developments relating to this policy change including details and nuances of its implementation. Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with an application, please feel free to contact us.