Greenspoon Marder Immigration Alert: Biometrics Mandatory for Form 1-539 Applicants, Congress Prepares to Avoid Government Shutdown, March 2019 Visa Bulletin and Southern Border Declared A National Emergency

Feb 19, 2019

Biometrics Mandatory For Applicants and Family Members of Form I-539

On March 11, 2019 USCIS will implement a revised edition of Form I-539, Application to Extend/Change Nonimmigrant Status, dated 02/04/19. The revised form will require most applicants and any family members included in the application to appear in person at a USCIS Application Support Center to have their biometrics taken (fingerprints, photo and/or digital signature), regardless of age. A biometrics fee of $85 will be required. Previously, biometrics were not required for I-539 applicants. In addition, they have to sign the application to change or extend their status. Parents and guardians will be permitted to sign on behalf of children under 14 or those incompetent to sign. Previously, only the principal I-539 applicant was required to sign the form. USCIS is expected to publish the new form on March 11, 2019 the effective date of the new requirements. Prior editions of Form I-539 will not be accepted after March 10, 2019 unless USCIS decides to provide a grace period. Many foreign nationals will be affected by this change including spouses and children of H-1B, L-1 and other principal employment-based nonimmigrant beneficiaries; B-1/B-2 business visitors;F-1 students and J-1 exchange visitors for certain changes and extensions of status.

This of course signals more delays as biometrics collection and related background checks will mean a longer wait time at USCIS for adjudications. The processing time for those processing an application for employment authorization filed with Form I-539 will also be delayed.

This is also of concern for the FY 2020 H-1B cap season. Under USCIS’s current plans, the new I-539 form will be required for changes of status to H-4 filed by the dependent family members of foreign nationals being sponsored under the FY 2020 H-1B cap, which begins April 1, 2019. However, the new I-539 form is not scheduled to be released for public use until just a few weeks before the April 1, 2019 start of the FY 2020 cap filing period, and it will take effect immediately. This will leave limited time to prepare H-4 change of status applications before the cap filing period opens. The American Immigration Lawyers Association and local state bars are working to make USCIS aware of the impact of the new Form I-539 on time-sensitive H-1B cap cases.

USCIS Resumes Premium Processing for H-1B petitions filed on or before December 21, 2018

Click here to view Greenspoon Marder’s recent client alert regarding possible premium processing for your H-1B cases.

Congress Prepares Action to Avoid Government Shutdown and Fund Key Programs Such As EB-5

On February 13, 2019, House and Senate Conferees on the Department of Homeland Security (DHS) Appropriations announced an agreement on DHS Appropriations for FY 2019 and the remaining six other outstanding FY 2019 Appropriations measures. The measure, HJ Res 31, or “the Omnibus,” is over 1,000 pages and deals with many areas of government, ranging from agriculture to transportation. Within this passage the EB-5 investor program is extended until September 30, 2019.

The bill also provides limited cap relief for the H-2B program and allows increase to the 66,000 H-2B cap for FY 2019 after consulting with the Department of Labor and if DHA determines that there are not enough available U.S workers.

March 2019 Visa Bulletin Released

Overall the movement was slow and disappointing. EB-1 will advance by one month for most countries, to January 1, 2018; China and India will advance by two weeks, to February 22, 2017.EB-2 will advance by three months for China, to January 1, 2016, and by three days for India, to April 9, 2009. All other countries will remain current. The EB-3 subcategory for Professionals and Skilled Workers will remain current for most countries, though China will advance by one week to July 8, 2015, and India will advance by one month to May 22, 2009. In March 2019, USCIS will accept employment-based adjustment applications from foreign nationals with a priority date that is earlier than the Final Action dates listed in the State Department’s March Visa Bulletin.

The Southern Border Is Declared A National Emergency

President Donald Trump on Friday declared a national emergency to unlock billions of dollars in federal funds to build a wall on the southern border, bypassing Congress after lawmakers refused to meet his multi-billion dollar request for border wall funds. The President declared the national emergency even as he agreed to sign a spending bill from Congress that allocated $1.375 billion for the President to build 55 miles of new fencing. The additional executive actions he is undertaking aims to redirect more than $6 billion in federal funds toward the construction of hundreds more miles of border barriers — bringing total funding for the wall to nearly $8 billion. The national emergency declaration still doesn’t guarantee Trump’s wall. The administration is expected to face legal challenges, including from House Democrats and landowners whose property will likely have to be seized to mount barriers.

House Democrats could introduce a resolution to rescind the national emergency and eventually vote on it on the House floor. It would then go to the Senate, where they would have to vote on it within a certain time frame. Even if it were to pass the Republican-controlled Senate, Trump could veto it.

About Greenspoon Marder

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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Greenspoon Marder Immigration Alert: Biometrics Mandatory for Form 1-539 Applicants, Congress Prepares to Avoid Government Shutdown, March 2019 Visa Bulletin and Southern Border Declared A National Emergency

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