Seyfarth Synopsis: On February 11, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it revised Form I-539 and that the new version will be released on March 11, 2019. Form I-539 is a frequently used USCIS form to extend/change the temporary status of dependent family members of principal workers employed pursuant to H-1B, L-1, TN, and E-3 visas, among other categories. Importantly, the announcement stated that applicants will now be required to attend a biometrics appointment before USCIS will grant the extension/change in status. Starting on March 11, 2019, USCIS will only accept the revised Form I-539.
Form I-539, Application to Extend/Change Nonimmigrant Status
Form I-539 is a frequently used form by those temporarily in the U.S., including in particular, dependents of H-1B, L-1, TN, E-3 and other nonimmigrant workers, to extend and/or change their status. In addition, B-1/B-2 visitors use the form to extend their stay in the United States.
The applicant signs Form I-539, which is often filed concurrently with an employer’s Form I-129, Petition for Nonimmigrant Worker for the principal worker.
Changes to the Form I-539
Although USCIS has not yet released the new version of the form, USCIS did announce the following significant changes:
Every co-applicant included in the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Previously, only the primary applicant was required to sign Form I-539. Parents or guardians may sign on behalf of children under age 14 or those who are not legally able to sign.
Every applicant and co-applicant must pay an additional $85 biometrics service fee in addition to the current USCIS filing fee of $370.
Every applicant and co-applicant will receive a biometrics services appointment notice, regardless of age. USCIS will schedule the biometrics services appointment at an Application Support Center (ASC) closest to the primary applicant’s residential address.
As of March 11, 2019, USCIS will only accept the revised version of Form I-539. The new form is not yet available, and according to the announcement, USCIS will not release it until March 11, 2019.
Expected Consequences of the Revised Form I-539 and Form I-539A
Currently, when an applicant files Form I-539 concurrently with the Form I-129, Petition for Nonimmigrant Worker, USCIS typically adjudicates them simultaneously. When filed together under premium processing, USCIS usually approves the I-129 and I-539 together within the 15-calendar day adjudication window, although not obligated to do so. Similarly, under regular processing, USCIS ordinarily adjudicates the I-539 and I-129 together. With the introduction of the biometrics requirement, it is likely that the processing of the I-539 will be significantly delayed, resulting in separate adjudication of the I-539 and I-129. As a result, there may be misalignment of immigration status approvals within a family unit.
In addition, the processing of Applications for Employment Authorization, commonly referred to as EADs, filed concurrently with Form I-539 will likely be delayed. This includes EADs for applicants holding dependent statuses, such as H-4, L-2, and E-3D.
The revised Form I-539 and Form I-539A are scheduled to be released on March 11, 2019. As of March 11, 2019, USCIS will only accepted the revised form. Consequently, practitioners, employers, and applicants will not be given ample time before the release to review the new form nor complete it in anticipation of an imminent filing. In particular, the timing of the release will impact the Fiscal Year 2020 H-1B “Cap” Season, as applicants seeking H-4 dependent status often include the Form I-539 along with the principal beneficiary’s Form I-129 petition for H-1B status. Therefore, there will be limited time for practitioners and employers to review and complete the form in advance of the H-1B filing window, which opens on April 1, 2019 and closes on April 5, 2019.
Seyfarth Shaw LLP will closely monitor this new development.