USCIS Will Temporarily Suspend Biometrics Requirements for H-4 and L-2 Holders Filing Extensions of Status and Renewals of Work Authorization

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As a result of the Edakunni class action lawsuit filed against DHS by the American Immigration Lawyers Association (AILA), of which Attorney Vigoda is a member, USCIS announced that it will suspend biometrics requirements for certain I-539 applicants for a two-year period beginning May 17, 2021.

The declaration primarily affects H-4 and L-2 holders, who are the spouses of H‑1B and L-1 nonimmigrants respectively. The adjudication of extension of status and work permit (EAD) renewals for these applicants is severely backlogged. According to a written declaration made on May 3, 2021 by USCIS Service Center Operation Directorate Associate Director Connie L. Nolan in Edakunni v. Mayorkas, the current number of Form I-539s for H-4 and L-2 spouses in the backlog is approximately 123,000 and the current number of Form I-765s for H-4 and L-2 spouses in the backlog is approximately 57,500. Current processing times for these applications are often over a year, which is especially absurd when considering that these are temporary visas in the first place.

The declaration also stated the following key points:

  • 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.

The above news is welcome, but it may not be enough to resolve the backlog. More importantly, DHS has not yet committed to restoring reasonable processing times. Targeted, aggressive action is needed to bring the the system out of dysfunction and ensure that eligible applicants receive the benefits for which they qualify in a routine, reliable manner.