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Changes to I-529 Filings Count as Slow Progess

Uscis Screen Shot Gasparian Spivey Immigration Law

The Biden administration came into office with the announcement of The U.S. Citizenship Act of 2021, which would bring about genuine, meaningful immigration reform. The possibility of meaningful change immediately sparked Republican opposition, so much so that there has been little movement on that initiative. It’s tempting to view the lack of progress and visible pressure to advance immigration reform as Biden bailing on his immigration platform. As immigration lawyers, we still see signs of less showy progress.

As we’ve said before, the Trump administration successfully made even legal immigration a slower, more onerous process. Many of his bigger, showier efforts failed in the courts because he and his staff didn’t go through the processes necessary to give them legal validity, but his administration—presumably driven by Steven Miller—successfully added impediments to the process to make it more expensive, cumbersome and intimidating to apply for legal status. Regulatory change went a long way toward achieving his goals without the drama and courtroom setbacks.  

In March 2019, those who wanted to file in I-159 Application to Extend/Change Nonimmigrant Status had to go to to a United State Citizenship and Immigration Services (USCIS) office to submit biometric data. What they collected was less invasive than “biometrics” sounds—a photo, fingerprints, and a signature—but viewed in conjunction with other measures taken by the Trump administration, it’s clear that the effort was designed to discourage applicants from pursuing legal status in the U.S. There was a fee attached to the biometrics session, and for those who feared what the government might do with their data—a common concern in immigrant communities—turning over such information played on those anxieties. The backlog of I-539 applications also meant that a slow process would become even slower as additional information had to be processed.

On May 7, USCIS took the first step to dismantle the Death-by-Red-Tape strategy by withdrawing a rule proposed September 11, 2020 that would have expanded the collection of biometric data. Then, on May 11, it announced that foreign nationals could reschedule biometric sessions by phone. The previous administration required those appointments to be scheduled in writing, which added to the bureaucratic tangle and made the process less certain as applicants couldn’t be sure that their request made it to the right person. Still, since our clients’ experience with USCIS’ customer service on the phone service has often been so frustrating, we’ll count this change as theoretical progress until evidence shows us otherwise. 

On May 13, it also announced that starting on May 17, biometric data will not be required to file certain I-159 applications. The change is temporary and will end May 17, 2023, but until then, it will not be needed to file for 

  • - Extension of stay in or change of status to H-4 nonimmigrant status
  • - Extension of stay in or change of status to L-2 nonimmigrant status
  • - Extension of stay in or change of status to E-1 nonimmigrant status
  • - Extension of stay in or change of status to E-2 nonimmigrant status (including E-2C (E-2 CNMI Investor))
  • - Extension of stay in or change of status to E-3 nonimmigrant status (including those selecting E-3D)

We’d be happier if these changes were not temporary, and if USCIS didn’t reserve the right to require biometric data on a case-by-case basis. We’d rather see these measures stopped, but it looks like the current administration is giving itself time to show that the biometric data simply isn’t necessary for 1-539 processing. 

We look forward to Biden’s administration continuing to undo Trump’s efforts to weaponize bureaucracy against immigrants, and can’t wait until USCIS restores in-person communication with lawyers and applicants. It was a valuable tool for resolving issues with cases and moving efficiently toward resolution. Still, every step toward dismantling the structure of nakedly obstructionist regulations is a step in the right direction.

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