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H4, L2 Processing Delays Lawsuit – USCIS to suspend H4, L2 Biometrics for 2 years

As many of you know there are extreme amount of delays with the H4 and L2 Processing times due to the Biometrics Requirements with I-539 form that was introduced by Trump Administration. This delays directly impact H4 EAD and L2 EAD Processing times and many have lost jobs. To address this issue, American Immigration Lawyers Association (AILA) and Wasden Banias Law firm filed a Class Action Lawsuit against DHS in March 2021. In this article, we will cover the high-level details, DHS filing that talks about suspension of biometrics for H4, L2, others, latest news, and latest updates as we get.

What is the H4, L2 Processing Delays Lawsuit?  Why filed ?

A Class Action (filed by a group of individuals) lawsuit was filed by AILA and Wasden Banias firm on March 22nd, 2021 against DHS in US District Court in Western District of Washington (Seattle) related to the delays with H4 and L2 processing times. Below is the snapshot of the lawsuit details from court documents website. The case’s documents are restricted for public.

US District Court H4 L2 Delays Lawsuit March 2022
US District Court H4 L2 Delays Lawsuit March 2022

The main reason for the lawsuit against DHS is due to the unreasonable delays to process H4 Visa and L2 Visa extensions or COS. Below is a snapshot historical processing times tracked by VisaGrader – H4 Processing Times. If you closely look at the chart, the lower bound or the best case itself is around 11 months and the worst case is like 17 to 20 months.   Also, if you look at over 100 H4 + EAD Biometrics Experiences shared by users, it is very obvious the delays caused due to biometrics.

H4 Extension Processing Times CSC
H4 Extension Processing Times CSC

To compare, if we look at the previous I-539 forms historical average processing times for H4 by USCIS, it was anywhere from 2.8 to 4.4 months during the years FY 2017 to FY 2020.   See below screenshot to get an idea on the same.

USCIS I539 H4 L2 Historical Processing times
USCIS I539 H4 L2 Historical Processing times

Now, the reality is that many H4 and L2 visa holders have lost jobs as they cannot get H4 EAD without H4 approval. One of the fundamental reasons for delays of H4 processing is the Biometrics Process that was introduced by Trump Administration in 2019 as part of Executive Order 13780. Protecting the National from Foreign Terrorist Entry into the United States”.  

Due to COVID, the Biometrics processing has been delayed by a big margin and in December 2020, USCIS said that they had over 1.3 million pending Biometrics appointments to be issued as of mid-Dec 2020.  Many could not even use the H4 EAD Expedite Request option as it does not work, if Biometrics are pending.  Also, despite Congress passing H4, L2 EAD Premium Processing Option bill in September 2020, USCIS has not done anything yet. They are yet to give a regulation for the same and in pending status.

Summary of the H4, L2 Processing Delays Lawsuit – Key points

The lawsuit related documents are restricted and not available for public access. Below is the summary of the lawsuit as per what we could get from AILA and other sources:

  • Over 91,000 people have lost jobs due to the delays in the H4 and L2 processing time.
  • The delays have literally killed current and future work authorizations of H4 and L2 visa holder, who have EAD option and are highly educated.
  • It is DHS inaction that is causing many of these H1B families to leave due to the job losses, losing talent. 
  • The delays by DHS are not reasonable and thousands are losing jobs due to the inaction from Govt with processing of H4 and L2.
  • They also highlight in the document the main reason is the H4 and L2 Biometrics process that is causing issues
  • They argue that it literally takes 10 min to approve these H4 and L2 approvals, including their EAD applications…but taking over 18 months due to the biometrics delays.
  • They also argue that there is no need for H4 and L2 biometrics.

Below is the snapshot of the summary from the court case document.

H4 L2 Processing Times Delay Lawsuit Case Summary
H4 L2 Processing Times Delay Lawsuit Case Summary

Latest News and Status of the H4, L2 Processing Delays Lawsuit

There was a lot of activity between DHS and the Wasden Banias & AILA submitting case related document back and forth in the last month or so since March 22, 2021. Below is screenshot of the latest updates as of May 4th, 2021.

DHS H4 L2 processing times lawsuit timeline update May 2021
DHS H4 L2 processing times lawsuit timeline update May 2021

Biometrics to be Suspended for H4, L2, E Visa Applications

Below is the summary of the guidance given by DHS in their court documents filed on May 3rd, 2021 regarding the H4, L2 Biometrics.

  • USCIS is finalising a policy on suspending Biometrics for H4, L2 and E visa holders starting from May 17th, 2021.
  • As per the new policy, from May 17th, 2021, USCIS will not need Biometrics for H4, L2 and E Visa holders.
  • This suspension of Biometrics for H4, L2, and E visas will be valid for 2 years and set to expire on May 17, 2023.
  • The Biometrics suspension is only applicable for Extension of Stay & Change of Status(COS) filings done for H4, L2 and E visas filed using I-539 form. Other visas that use I-539 form for extensions like F1, B2, others still need biometrics.
  • The new policy of suspension of Biometrics would be applicable to all pending H4, L2, and E visa applications as of May 17th, 2021 and all new filings after that date.
  • If H4, L2 users get Biometrics notices, they must attend the same appointments at ASC and give biometrics.
  • USCIS has discretion to ask for Biometrics for H4, L2 or E visa holders, based on a case by case basis to verify identity and other screening purposes.
  • Below is the screenshot of the actual copy of document that confirms the suspension of biometrics information from DHS.
H4, L2 Biometrics to be suspended for 2 years
H4, L2 Biometrics to be suspended for 2 years

Also, below is the exact tweet screenshot from Wasden Banias official law firm account. We do not have any official confirmation from USCIS yet on this as they have not released any press release yet. Will keep you all posted. Check Tweet

Twitter Wasden Banias H4 L2 Tweet
Twitter Wasden Banias H4 L2 Delays Lawsuit – Biometrics Tweet

Common FAQs

Is the Biometrics Requirement for H4, L2 removed by USCIS?

It is not yet removed. As per Court filing documents and Wasden Banias law firm, DHS said that they would remove this by May 17th, 2021. We are yet to see official update on this from DHS on USCIS website.

Will the processing times for H4, L2 and H4 EAD improve in future ?

Yes, absolutely. If the biometrics requirements are removed, then USCIS can adjudicate the petition much faster without waiting for them. In fact, they used to approve H4 and H4 EAD in premium as a courtesy, before the Biometrics process for H4.

Will USCIS remove Biometrics requirement for pending H4, L2 applications?

As per the court documents, it will apply to all pending H4, L2 and E visa applications that have not received Biometrics notices by May 17, 2021 and all new filings. As of now, there is no official news update from USCIS to confirm the same. We need to wait for official confirmation from USCIS.

Was H4 EAD automatic Extension of 180 days part of Lawsuit ?

We do not have specifics on if it was part of the lawsuit. So, we do not know if the 180 days automatic extension would be granted for H4 EAD. You can check USCIS EAD Category Codes 180 days eligibility for more info

I have USCIS Biometrics appointment for my H4 or L2 Visa application, should I attend ?

Yes, you must attend them. As of now, nothing is official, we need to wait for the official update from USCIS on any of the changes. So, do not miss anything.

Is H4 EAD Removal Lawsuit related to this ? Will H4 EAD be removed ?

No, that lawsuit is different. DHS withdrew their plan to remove H4 EAD from OMB, but the court case is still on. The most recent update is that joint motions are being filed by both DHS and Save Jobs. Check more at : Latest Updates on H4 EAD Lawsuit

What do you think of the development in the lawsuit ? Your thoughts ?

   

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13 Comments

  1. Does this apply to the H4 EAD application which is Form I-765? There is a long wait time for H4 EAD as well. Were you referring to H4 EAD as well when you said it takes 10mins for H4 approval but 18 months for biometrics?

    For my specific case, my spouse recently moved to the US on H4 visa and we have applied for H4 EAD. Do we need biometrics in this case? What is the wait time for H4 EAD? Because in the visagrader tracker it says H4 COS and extension but doesn’t specify EAD.

    Reply
  2. Similar timeline here, biometrics were taken in early November. L2 status was approved about a month ago, but the EAD application is still pending even though it was filed concurrently in early July

    Reply
  3. I know it doesn’t make sense but do we still have to pay the Biometric fee? if yes, what happens in the scenario of already filed applicants who paid the fee but didn’t get the biometrics appointment yet.

    Reply
    • Manny,
      No guidance yet on this. Let’s wait.
      If paid, most likely they may not refund, it is too much overhead for them. Many would rather lose money over the wait for appointment 🙂

      Reply
  4. Hi

    My Biometrics for the L2 extension was done on 12/03/2020 today is 5/5/2021 not received an extension yet and lost the job 6 months back. L1-L2-EAD extension was all filled together on Jul 31st, 2020 Texas SC. L1 extension got approved in 15 days with premium processing but 9 months into the wait time no update or approval.

    Biometrics is also 6 months into the time. Will this new rule help me to get L2 and EAD fast?

    I tried for an expedited request for both was also rejected in Jan 2021 🙁 even my letter says I was working on a major medical IT project!

    Pure harassment to legal immigration and unlawful practice by USCIS.

    Reply
    • Ujjwal,
      Sorry to hear.
      It would likely help as there will not be need for the biometrics.
      That’s why USCIS is sued, let’s see.

      Reply
    • Lux,
      Yes, it will as per their view in the filed document. Check above article, we have added the screenshot.

      Reply
    • Neha,
      Only H4 EAD does not require Biometrics. If you had H4 extension with it, then you need it. Yes, if you have not received the biometrics notice yet and pending, it will apply. Check above screenshot from the actual document.

      Reply
      • Kumar, I have a question. Can we apply for my H1-B Extension, H4 extension and H4 EAD all together in premium processing and get it approved in 15 days (premium)? Could you please confirm?

        Reply

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