As a result of recent USCIS processing changes, dependents of nonimmigrant visa holders may be directly impacted in three ways, thus increasing the need for strategic planning to address the lengthy adjudication period for family members.
Impact: USCIS Discontinues “Courtesy” Premium Processing of Form I-539
USCIS recently announced that it will no longer provide courtesy premium processing service to I-539 applications to extend or change the status of dependent family members filed concurrently with a principal applicant’s Form I-129 petition and premium processing request. Premium Processing Service provides expedited processing for certain employment-based petitions and applications. Specifically, USCIS will adjudicate such a petition within 15 calendar days for an additional government filing fee of $1,410.
Form I-539, Application to Extend/Change Nonimmigrant Status, in itself, is not and was not eligible for Premium Processing; but as a courtesy, USCIS has historically processed a Form I-539 that was filed together with premium processing eligible forms, such as Form I-129, within 15 calendar days. By contrast, the new practice will now be to separate Form I-539 from the I-129 petition and follow the regular I-539 processing queue, which can take 3 to 7 months for adjudication.
USCIS stated that the reason for this practice change is that the new I-539 form published in March 2019 now requires biometrics for all dependents, including children. As a result, USCIS can no longer adjudicate dependents’ applications concurrently.
Impact: The Burden of Traveling Abroad
The fastest way for dependent family members to extend or change status will now be to travel abroad after the principal’s status has been changed or extended. For instance, a dependent of an H-1B visa holder may opt to process an H-4 visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays of Form I-539 by USCIS. This option might not be feasible for some people for reasons such as travel restrictions, visa processing issues, or personal circumstances.
Impact: H-4 EAD Applications
Certain H-4 spouses of H-1B visa holders who became eligible to obtain an employment authorization document (EAD) in order to work in the United States based on a 2015 regulation can still do so. However, because the I-539 is no longer eligible for expedited processing when the I-129 petition is filed with premium processing, EAD applications filed concurrently with the I-129, I-539, and premium process request will also be processed under the regular queue, thus delaying the EAD approval.
Importantly, the Trump administration has proposed a regulation to rescind H-4 EAD eligibility. This regulation is currently pending review with the Office of Management and Budget (OMB).