Business Immigration Insights

On February 11, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a revised Form I-539, Application to Extend/Change Status.  The revised form will publish and become effective on March 11, 2019.  As of the effective date, USCIS will only accept the revised Form I-539.  Affected foreign nationals include spouses and children of H-1B and L visa holders; visitors for business or pleasure; F-1 students and J-1 exchange visitors for certain changes of status.

USCIS will also publish a new Form I-539A, Supplemental Information to Extend/Change Nonimmigrant Status. Form I-539A replaces Supplement A in the current version of the Form. Like the current version, it must be submitted with Form I-539 to list any co-applicants.

Changes on the New Form

The revised Form I-539 requires that every co-applicant included on the primary applicant’s Form I-539, regardless of age, submit and sign the new Form I-539A. Parents and guardians may sign for children under the age of 14.  In addition, every applicant and co-applicant will be subject to biometrics collection, including paying the $85 biometrics services fee.  Every applicant and co-applicant will receive a biometric services notice with an individual receipt number informing them of their appointment at local Application Support Centers where fingerprints, photographs, and/or signatures are collected.  Certain A, G, and NATO nonimmigrants are exempt from the biometrics requirement.  USCIS will reject any Form I-539 that is missing required signatures or biometrics fees.

Likelihood of Processing Delays

Given the expansion of biometrics collection, foreign nationals, principals and dependents, can expect longer processing times due to the additional biometrics processing required for each application. Increased volume and the time it takes to complete the biometrics and background checks could also increase wait times for Employment Authorization Documents (EAD).

Impact on Fiscal Year 2020 Cap Filings

Unfortunately, the public will not be able to view the revised I-539 and new I-539A until it goes live on March 11^th.  This leaves little time to prepare and finalize these applications prior to submission of FY2020 H-1B cap petitions during the first five business days of April.

Analysis

USCIS has regulatory authority to require any applicant, petitioner, sponsor, beneficiary, or individual to appear for an interview and biometrics collection. USCIS thus far only collects biometrics in connection with immigrant visa petitions.  Biometrics collection assists USCIS in conducting required background and security checks and assists with confirming individual identity.  Starting March 11^th, USCIS will require biometrics in connection with a nonimmigrant visa application for the first time.

Pursuant to section five of Executive Order 13769 (March 6, 2017), the Department of Homeland Security is directed to implement uniform screening and vetting standards for all immigrant programs. As a result, USCIS remains focused on improving and potentially increasing its vetting of applicants and petitioners.  As a result, foreign nationals and their employers should anticipate an expansion of biometrics to potentially include I-129 beneficiaries and others seeking immigration benefits.

While we may see litigation challenges to the expanded collection, employers and foreign nationals should be prepared to complete the revised I-539 and new I-539A, as applicable, to ensure that filings are not rejected by USCIS.

If you need assistance with the new requirements or other immigration related issues, please contact us.

Natalie Tynan is a former DHS lawyer who focuses on immigration compliance and related issues.