In March 2019, USCIS published a revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, both with an edition date of 2/4/19. As of March 22, 2019, USCIS began accepting only the revised Form I-539 with an edition date of 2/4/19, and began rejecting any Form I-539 or Form I-539A with an edition date of 12/23/16, or earlier. The revised Form I-539 has significant changes, including the requirement that every applicant pay a biometrics fee and attend a biometrics appointment, regardless of age.
With the addition of this new biometric requirement for all I-539 applicants, on March 1, 2019, USCIS indicated during a stakeholder teleconference that USCIS may no longer continue its prior “courtesy practice” of offering premium processing adjudicative services to I-539 applications filed concurrently with a qualifying I-129 petition. Rather, I-539 applications are now being separated from the I-129 petition and follow the regular I-539 processing queue, as I-539 applications are no longer eligible for such premium processing “courtesy”.
According to USCIS, its longstanding courtesy practice of premium processing I-539 applications filed concurrently with a qualifying I-129 petition could not continue because it generally takes at least three weeks for the I-539 biometrics to be completed, such that USCIS cannot meet the 15-day premium processing timeframe. With that in mind, upgrades to premium processing the I-129 petition and the concurrently filed I-539 application post-filing (i.e.; after the I-539 biometrics are completed), will also not work. Given that USCIS has no obligation under the regulation to adjudicate the I-129 and I-539 concurrently, the I-539 application may take substantially longer to process than the principal I-129 petition. As of the date of his writing, USCIS is currently adjudicating I-539s in about 4 months. This, of course, will also serve to delay any I-765 applications seeking initial and renewal EADs for qualifying H4 spouses, which I-765 applications are taking approximately 5-6 months to be adjudicated at present.
Given the lengthy processing times, depending on timing, travel restrictions, visa processing issues, driver’s license renewals, and other related concerns, as an alternative to filing the I-539 application with USCIS, derivatives may resort to processing a nonimmigrant visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays associated with the adjudication of Form I-539 by USCIS. In this way, an applicant may file an H-4 EAD (if applicable) immediately upon his/her re-entry into the United States as an H-4. Most importantly, early preparation of these cases is essential. Internally, we have increased the time in which our automatic reminders are sent to our HR/Legal team partners to 7-8 months prior to current expiration for your H-1B and L-1 employees (depending on each individual scenario), in an effort to give our clients more time to make internal decisions related to proceeding with H-1B/L-1 renewals, with the aim of filing petitions seeking extensions of stay at the earliest possible date we are permitted to file them under the regulation.
If you have any questions, please contact Anthony F. Siliato or Scott R. Malyk. And be sure to follow us on Twitter and LinkedIn.
DHS recently published a final rule to establish an electronic registration program for H-1B petitions that requires a $10 registration fee per H-1B candidate for the April 2020 cap season (FY 2021). The primary purpose of the regulation is to conduct the lottery in such a matter so that employers will know in advance of filing a full H-1B petition whether the candidate has been selected in the lottery, which will then necessitate submitting a complete H-1B filing for each selected candidate with USCIS within 90 days of receiving such notice.
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