The use of new forms (Form I-539 and a new I-539A) seems like a very mundane subject to merit an alert, but indeed coming right before the start of the fiscal year 2020 H-1B cap filing season in April of 2019, it deserves attention and concern. On March 8, USCIS published a new I-539 form as well as a new form I-539A for use on and after March 22, 2019. The I-539A form replaces the Supplement A to the I-539 form.
What is the effective date?
The new forms, I-539 and I-539A, posted on March 8, 2019, must be used if the filing will be received by U.S. Citizenship and Immigration Services (USCIS) on or after March 22, 2019.
What is the problem? – Expect Delays and Unhappy Babies
1. First, when do we use a change of status or extension of status form I-539 for a nonimmigrant?
We use it for dependents of nonimmigrant principal applicants (e.g. H-4s, L-2s, TDs, etc) as well as for the reinstatement of F-1 and M-1 students. Historically, it has not been possible to premium process an I-539, so it is always very concerning to try to maintain a dependent’s status timely. Right now, the processing time for H or L dependents filing the I-539 ranges from 2 to 15.5 months depending on the Service Center processing the case and the type of I-539 category.
2. What do the new forms change?
- Process – All I-539 applicants and co-applicants, no matter the age, must be scheduled for a biometric appointment at an Application Support Center (ASC). If applicants and co-applicants desire to be scheduled for their ASC appointments at different ASC locations, they should file a separate I-539 along with the required filing fee.
- Fees – All applicants and co-applicants must pay an $85.00 biometrics fee in addition to the $370.00 filing for an I-539. (except certain A, G, and NATO nonimmigrants)
- Signatures – All co-applicants must sign and file a separate I-539A form. Parents or guardians may sign on behalf of children under 14 years of age or for those mentally incompetent to sign on their own behalf. Any unsigned form (I-539 or I-539A) will be rejected by USCIS.
- Forms – As noted above all co-applicants must sign and file the I-539A if the form is to be received on or after March 22, 2019 by USCIS.
The requirements for these forms present a startling contrast with the USCIS requirements for adjustment applicants to permanent residence using the I-485 form. USCIS currently indicates that adjustment of status applicants under the age of 14 are not required to provide a signature on an application, petition, or request filed with USCIS, but they may choose to sign their name during their ASC appointment if they are capable of signing. 8 CFR §103.2(b)(9) does provide, however, USCIS with authority to require any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request to appear for an interview and/or biometric collection. The Department of State requires visa applicants between the ages of 14 to 79 to be fingerprinted, except in limited cases when children over seven may be required to be fingerprinted. So, what is the reason for this draconian requirement by USCIS? Why would principal applicants filing an I-129 form be exempt? Why does USCIS believe fingerprinting children under 14 to be necessary? Is this change for security optics or just to make life continuingly more difficult for foreign nationals to implement the Buy American Hire American executive order? Whatever the answer, do not forget the deadline for the use of the new forms and the required biometrics and fees.
About the Author:
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.
 9 FAM 303.1-2(D)(1)(U)