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Limited Expedited Processing Options for Dependents

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).

©1994-2020 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume IX, Number 205


About this Author

Angel Feng, Immigration Attorney, Mintz Levin, Visa Petitions Lawyer, Green Card, Immigration EB-5 Financing
Special Counsel

Angel focuses her practice on business immigration matters and related compliance issues. She works with employers in designing and defining corporate immigration programs and policies, and in structuring short and long-term visa strategies for management, professional and specialized skill foreign employees.  She also advises employers on discipline, suspension and/or termination of visa sponsored employees and litigation prevention measures; and counsels clients on employment eligibility verification, I-9, and E-verify compliance and employer defense in ICE audits, and worksite...