In an affidavit to a federal court filed May 3, 2021, the USCIS Acting Associate Director of Service Center Operations stated that to decrease a substantial backlog, the agency was set to suspend the collection of biometrics for H-4, L-2, E-1, E-2, and E-3 applicants filing for a change of status or extension of stay and work authorization. The suspension is effective May 17, 2021 and applies to both new and pending applications in which biometrics have not been scheduled. This announcement is a relief to the thousands of spouses and children* of foreign temporary workers who have been awaiting processing for months.

Outstanding questions

USCIS has not made a formal announcement nor provided details, including will biometrics fees ($85):

• still be required? The affidavit says that USCIS may require biometrics in a particular case, so the fee may be collected.
• be refunded if no biometrics are taken? Refunds are rare at USCIS, so we are not expecting them.

Also, the affidavit made no mention of premium processing of these applications, which was authorized by Congress last year but has yet to be implemented.

Should filings be held until May 17?

Pending applications that have not been scheduled for biometrics before May 17 will not be scheduled for biometrics except for case-specific reasons. To avoid biometrics, filings may be held until May 17 and a formal announcement from USCIS. However, biometrics scheduling has been slow so the chances of being scheduled are slim for applications filed now if other considerations make filing before May 17 necessary.

Addressing the backlog

The affidavit was filed as part of the lawsuit, Edakunni v. Mayorkas, alleging an unreasonable delay in adjudicating extension of status and employment authorization for H-4 and L-2 applicants. Once again, the benefit of litigation in the immigration context is clear. 

However, it is also apparent that the Biden Administration is taking the backlog seriously and initiating steps to address it, despite the challenge posed by prior management and the pandemic. The affidavit confirmed that the Application Support Centers that take biometrics are operating at only 65% of the pre-COVID levels. Change of status and extension applications for H-4 and L-2s stand at approximately 123,000 and employment authorization applications at approximately 57,500 as of May 3. In addition to suspending biometrics, USCIS has assigned 120 officers and is training another 33 to work these files on a first-in-first-out basis.

This development is one of several that show the Administration’s commitment to the immigration process. We hope for more good news ahead.

*Note that only spouses are eligible for work permission, but children are also affected by the delay in change and extensions of their status.