Cyrus Mehta

The Nuts and Bolts of Complying with the H-1B Notice Requirements

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A US employer has to meet several requirements when filing an H-1B visa petition on behalf of the foreign national employee. One important requirement is for the employer to notify affected US workers regarding its intent to hire a foreign worker in H-1B nonimmigrant status. The notification requirement is considered to be an important protection for US workers as it informs them of the terms of the employment of the nonimmigrant H-1B worker, including the wage being offered, and the right of the US worker to examine documents justifying the wage, as well as the ability of the US worker to file complaints if they believe that violations have occurred.

The Wage and Hour Division of the Department of Labor has issued useful guidance regarding H-1B notice requirements by electronic posting in a Field Assistance Bulletin dated March 15, 2019 (FAB).  The WHD has seen a rise in the use of electronic notification by employers who file H-1B petitions. Employers have the option to notify US workers either through a hard copy notice or through electronic means. In the case of large employers, especially consulting companies who place thousands of H-1B workers at third party worksites of their clients, they have been using their own public website to meet the notification obligation. The FAB clarifies that use of a public website is permissible provided “all affected workers, including those employed by a third party, have access to, and are aware of, the electronic notification.”

212(n)(1)(C) of the Immigration and Nationality Act (INA) provides the legal basis for employers to provide notification to affected US workers of its intent to hire H-1B nonimmigrant workers. This notification obligation is triggered prior to the employer filing the Labor Condition Application (LCA). It is only after the LCA is certified that an employer may file the Form I-129 petition to classify the foreign worker for an H-1B visa or H-1B status. The DOL is required to certify the LCA within 7 days unless the information provided therein is inaccurate or incomplete. The notice must be given on or within 30 days before the date the LCA is filed with the DOL. It is important to first post and then electronically file the LCA in order to ensure perfect compliance.

20 CFR 655.734 provides further guidance on the employer’s notification obligation. Employers may comply with their notification obligation by posting either a hard copy notice or by electronic notification. Where there is a collective bargaining representative for the occupational classification in which H-1B nonimmigrants will be employed, the employer must provide the notice to the collective bargaining representative on or 30 days before the date the LCA is filed with the DOL.

Regarding who affected workers are, the FAB states:

“Affected workers are those at the same place of employment and in the same occupational classification in which H-1B workers will be or are employed. See 65 FR 80110; 80161. Affected workers need not be employed by the H-1B petitioner to qualify as such: the H-1B petitioner’s notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third party company. Id.”

The FAB then goes onto discuss hard copy and electronic notification requirements.

Hard Copy Posting Requirements

These requirements are set forth in 20 CFR 655.734(a)(1)(ii). The petitioning employer must post notice in at least two conspicuous places at the place of employment so that affected workers can easily see and read the posted notices. The notice shall indicate that H-1B nonimmigrants are sought; the number of such nonimmigrants the employer is seeking; the occupational classification; the wages offered; the period of employment; the locations at which the H-1B nonimmigrant will be employed, and that the LCA is available for public inspection at the employer’s principal place of business or at the worksite. The notice shall also include the following statement: “Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”

There are additional requirements for H-1B dependent employers or willful violators who are not using exempt workers, which are also set forth in the regulation.

A copy of the LCA that is posted at two conspicuous locations also fulfills the notice requirement.  Note, though, that the most recent version of ETA 9035 requires the employer to indicate the business name and address of the entity, if the H-1B worker will be assigned to a third party site. Thus, the information contained in the LCA, if it is used to fulfill the notice requirement, goes beyond what is required in the regulation. 20 CFR 655.734(a)(1)(ii) only requires notification of the “location(s) at which the H-1B nonimmigrants will be employed” and not the business name and address of the entity.

The FAB states that an employer will not be in compliance of its notice obligation if it posts the “hard copy notification, for example, in a custodial closet or little visited basement.” 20 CFR 655.734(a)(1)(ii)(A)(2) suggests that appropriate locations for posting could be in immediate proximity to wage and hour notices or occupational safety and health notices. Still, if the intention of the notice is for workers in the same occupational classification to see them, then the notices could conceivably be posted conspicuously in the place where say software engineers in a large company congregate, such as in their pantry or recreational area. It would, however,  be prudent for the employer to post the hard copy in the vicinity of other notices that the employer is obligated to post under law as that would maximize the ability of affected workers to read it.

The employer who intends to employ H-1B workers at third party worksites also has an obligation to post at the third party site even if that place is not owned by the petitioner. The FAB suggests that the hard copy posting must be placed in a location available to all affected employees. “For example, if the H-1B petitioner posts at a third-party worksite, but in a physical location accessible only to its own employees (such as a private employee lounge or office) affected workers employed by the third-party have not been notified and the employer has not complied with this provision.”

There have been instances of entities that receive H-1B workers who do not cooperate with the posting requirement. The H-1B petitioner, unfortunately, is still liable for violating the notification requirement even if the third party entity refuses to post the notice. See Administrator v. Sirsal, Inc. and Vijay Gunturu, 11-LCA-1 (ALJ July 27, 2012).  There is no legal basis for penalizing the third party that refuses to cooperate.  Some petitioners in a good faith attempt to comply, when the third party refuses to post,  have the H-1B worker post the notice on his or her cubicle, but this  attempt, even if sincere,  may still not be in compliance if the posting is not visible to all affected workers in the occupational classification at the third party worksite.

The notice shall be posted on or within 30 days before the date LCA is filed, and shall remain posted for a total of 10 days.

Electronic Notification

In cases where the third party entity refuses to cooperate, electronic notification may be a way for the employer to be in compliance, especially those who place large number of H-1B workers at many worksites throughout the country. Electronic notification is as effective as hard copy notification under 20 CFR 655.734(a)(1)(ii)(B). The employer, according to the FAB, “must make the notification readily available, as a practical matter, to all affected employees.” Thus, the affected worker must be capable of accessing the electronic notification. The employer may e mail or actively circulate electronic messages such as through an employer newsletter.

Such notification shall be given on or within 30 days before the date the LCA is filed, and shall be available to the affected employees for a total of 10 days, except that if employees are provided individual, direct notice (as by e-mail), notification only need to be given once during the required time period. The notification must contain the same language as a hard copy posting.

With respect to notification to affected workers employed at a third party worksite, when the petitioner places its employees there, electronic notification must be given to “both employees of the H-1B petitioner and employees of another person or entity which owns or operates the place of employment.” 20 CFR 655.734(a)(ii)(B). The FAB still warns that some electronic resources used by H-1B petitioners may not be accessible to affected workers at a third party. Even if employees of the third party site can visit the electronic resource, “if they do not know to visit the electronic resource, the notification is not readily accessible, to affected workers employed by the third party.” And if affected employees have access to the electronic notice, but they cannot determine which notice is applicable to their worksite, the notice is insufficient and the employer will not be in compliance.

Electronic Notification on Public Websites

H-1B petitioners may provide electronic notification on their public websites, so long as the affected workers at the third-party worksite are aware of the notice and are able to determine which notice is applicable to their worksite. A number of large employers post the LCAs on their website and indicate the work locations.

Take for example PwC. PwC’s website has a link to Careers. From the Careers page, one scrolls down to Labor Condition Applications, which in turn takes you to a link to the work location such as San Antonio, TX, which opens up the actual LCA for that location.

Similarly, with respect to Cognizant, one has to go to Careers, and then scroll quite a way down to LCA Notices, which then links to a location, which further links to the LCA notice rather than the actual LCA.

Both PwC and Cognizant are compliant relating to a website posting as the affected workers are able to determine which electronic notice applies to their worksite. However, the FAB indicates that employers may need to do more than just posting the links with the work locations on their websites, and may have to make affected workers aware that the petitioner has posted on its website. This is not to suggest that these companies are not taking additional steps to notify affected workers, but the point being made is that posting the worksite by any employer on its public website may not be enough.  The FAB suggests posting a link to the electronic notice for a particular third-party employer’s intranet site or emailing the link to all affected employees at that worksite. The FAB also suggests that the H-1B petitioner complies, after electronic notification, by posting a hard copy message in a conspicuous site or directing affected workers to the website where the notice is posted for that particular website.

According to Roman Zelichenko, CEO and Co-Founder of LaborLess, the “DOL has allowed for some flexibility.” In the penultimate paragraph, the FAB states that, “an H-1B petitioner may provide this notification using whatever method, or combination of methods, it deems most prudent for its businesses.”  Zelichenko, whose company automates LCA posting for employers and attorneys, adds: “And this makes sense – small companies who hire H-1B workers through a consulting company or staffing firm might use Slack, Microsoft Teams, etc. to communicate with their staff, making that potentially the “most prudent” means of notifying their employees of an LCA posting. For other employers, the easiest way to comply would be to post a notice where they traditionally posted hard copy LCAs, except now it would direct employees to a URL. Ultimately, the memo’s language allows companies to decide for themselves how best to comply, while outlining the basic guidelines those companies should follow if they want to remain compliant.”

Even if an H-1B employer posts electronically, the DOL may still find that the employer is non-compliant if affected workers are not notified about the existence of the electronic posting. The guidance thus suggests that “[a]n H-1B petitioner may default to posting of a hard copy if it cannot ensure that all affected employers have ready access, as a practical matter, to the electronic notice.” The lesson to be learned from this is that electronic notification may not be the ultimate solution, especially to get around a recalcitrant third party entity that refuses to cooperate, and H-1B employers may still have to resort to a paper posting to ensure that all affected workers  have been notified.  And if the third party refuses to post, the H-1B employer is caught in a classic Catch -22!

 

 

Cyrus Mehta

The Best Way for Trump to Offer “Love and Sympathy” is to Repeal the Muslim Ban

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In the aftermath of the killing of 49 people who were peacefully praying in two mosques in Christchurch by a white supremacist, it is worth reflecting on Trump’s travel ban  again.

Trump’s travel ban, also known as the Muslim ban, and all of his other immigration policies, are based on promoting white nationalism. It is thus little surprise that Trump did not firmly denounce white nationalism and did not view it as a worrying trend in the world and instead  blamed a small group of people “with very, very serious problems.” He did not show any revulsion for the suspected killer, Brenton Harrison Tarrant, even though in his manifesto Tarrant praised Trump “as a symbol of renewed white identity and common purpose.”

When Trump was a candidate he said “I think Islam hates us.” He also lied about Muslims across the river in New Jersey celebrating after the September 11 attacks. As a candidate, Trump audaciously called for a “total and complete shutdown for Muslims entering the United States.” It was this animus towards Islam that played to Trump’s electoral base that served as the backdrop for Trump’s executive orders banning people from mostly Muslim countries when he took office. The first two executive orders were struck down by courts. A modified third executive order was fashioned to survive court scrutiny, which was upheld by the Supreme Court in Trump v. Hawaii even though two lower courts of appeal struck it down as unconstitutional. The ban has empowered extremists and Islamophobes worldwide.

This may also be the reason why Trump did not specifically express empathy with Muslims in his tweet expressing condolence after the Christchurch massacres, which he tweeted shortly after an interview with Brietbart News where he suggested that his supporters would resort to violence:

My warmest sympathy and best wishes goes out to the people of New Zealand after the horrible massacre in the Mosques. 49 innocent people have so senselessly died, with so many more seriously injured. The U.S. stands by New Zealand for anything we can do. God bless all!

Neither does Trump condemn the killer in this tweet. He insensitively says “best wishes” as if it is a wedding and ends with “God bless all.” One can see white supremacists taking some comfort in this equivocal message. Recall his other infamous equivocal message when he defended neo Nazis in Charlottesville by stating that there are “very fine people on both sides.”  Compare Trump’s statements with those of New Zealand’s premier Jacinda Ardern’s expressing great solidarity with Muslims while wearing a dupatta. She also advised Trump to offer Muslim communities “sympathy and love” when he asked her what the United States could do to help New Zealand.

While nobody is expecting Trump to visit a mosque in Muslim dress, the best way for him to take up Ardern’s offer of “sympathy and love” is to repeal the Muslim ban. It does not matter that the Supreme Court in Trump v. Hawaii upheld the travel ban by a narrow 5-4 majority. The ban has contributed to global Islamophobia, which in turn inspires supremacists like the New Zealand killer to massacre peaceful Muslims during Friday prayer time. There has already been much criticism of the Supreme Court’s decision in Trump v. Hawaii. Although Trump made various utterances regarding his animus towards Muslims during his campaign and even after he became president, the majority found the third version of the executive order to be neutral on its face and that it did not violate the Establishment Clause of the First Amendment of Constitution. Still, ironically, the majority overruled Korematsu v. United States, 323 U.S. 214 (1944), which upheld the forced internment of citizens of Japanese-American origin during World War II,  as having no place in the US Constitution. Yet in her powerful dissent, Justice Sotomayor found striking parallels between Korematsu and Trump’s ban. For example, both executive orders were based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy. The Supreme Court’s decision in Trump v. Hawaii is destined to be viewed in the same way as Korematsu – a shameful low point in Supreme Court history.

The Muslim ban views every national of a banned country as  suspect and as someone who possesses a grave threat to the United States even if this person is a grandmother or a baby. While it is true that nationals of banned countries can seek waivers, such waivers are seldom granted and have been viewed as a farce. The ban separates a foreign national spouse of the banned country from uniting with the US citizen spouse. The ban also prevents a banned country national from studying in a US university, taking up employment as a skilled professional on an H-1B visa or attending an academic conference as a visitor. While one is hard pressed to conclude whether the ban  furthers the national security interests of this nation, it definitely inspires white supremacists, who like the Christchurch killer believe that white people will be replaced by Muslims, blacks and Jews who will eventually subordinate them. In his manifesto, the killer referred to himself as a “regular white man” and that he was carrying out this attack to “directly reduce immigration rates to European lands by intimidating and physically removing the invaders themselves.” This is so similar to Trump’s rhetoric where he refers to the “caravan” of Central American migrants as invaders to justify the Wall, which is lapped up by white nationalists. Trump also falsely claimed when speaking about the dangers of the caravan that prayer rugs were found at the border to keep his base happy but also playing to their basest instincts. How could Trump denounce white nationalism when asked about it in the aftermath of Christchurch when he has the support of white nationalists and his immigration policy promotes white nationalism? White nationalism can only be eradicated if Trump is first universally condemned for inspiring it.

Can Trump rise up to the challenge and repeal the travel ban, and reverse so many other of his harsh immigration policies that do nothing to further America’s interests? It is the millions of immigrants who came to America since its inception for a better life that have contributed to the nation’s greatness. Trump has nothing to make America great by undermining the notion of America as a nation of immigrants. Instead, his immigration policies have been deployed to please his mostly white voter base who are insecure that immigrants are invading their country. His base does not represent the majority of Americans who have a positive view of immigrants. Trump’s slogan “Make America Great Again” is code for making America white again. Trump likes to cast himself as an incredible leader who has achieved more than any other president in his first two years, but that claim merely exists as fantasy in his mind. A leader can do better than catering to people’s vilest and basest fears, as Trump has done so far.  A leader must inspire Americans to embrace immigrants who, like sugar dissolving in a bowl of full of milk, have sweetened the nation with their enterprise, talents and culture.

Trump’s travel ban is a mere executive order that can be withdrawn with the stroke of a pen. If he does so, it would be a powerful symbolic gesture for expressing solidarity with Muslims after the horrific Christchurch massacres and a blow to the cause of white supremacists and Islamophobes.  If Trump cannot rise to the occasion and view white nationalism as a rising global threat, he will deservedly be viewed no better than a vile white supremacist even though he rose to become president of the United States,  and consigned to history’s garbage bin.

Cyrus Mehta

Advancing a “Social Group Plus” Claim After Matter of A-B-

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In Matter of A-B–, 27 I&N Dec. 227 (A.G. 2018), former Attorney General Jeff Sessions overruled a prior Board of Immigration Appeals (BIA) precedent, Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), which held  that victims of domestic violence can qualify for asylum based on their particular social group (PSG) of “married women in Guatemala who are unable to leave their relationship.” Although victims of domestic violence has been recognized as a particular social group in US asylum law as well as in the asylum laws of other countries like the United Kingdom,  Canada and New Zealand,  Sessions set aside Matter of A-R-C-G resulting in a setback for persons fleeing domestic violence.

There is much commentary revealing how the reasoning of Matter of A-B was dicta. The application of Matter of A-B has been successfully challenged in the context of credible fear claims in Grace v. Whitaker.  Therefore, despite Matter of A-B, an applicant must still assert membership in a particular social group when fleeing domestic violence. In Matter of M-E-V-G-, 26 I&N 227 (BIA 2014), the Board acknowledged that whether a particular social group exists is a case-by-case determination and the AG’s decision should not be read to foreclose alternative particular social group formulations for victims of domestic violence where the facts of the case support it. Matter of M-E-V-G-, 26 I&N 227, 242 (BIA 2014); Matter of A-B-, 27 I&N Dec. 227, 319 (AG 2018) (noting that this decision is consistent with Matter of M-E-V-G-).  It may however be prudent for an applicant fleeing domestic violence to assert other grounds of asylum in addition to membership in a particular social group.

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2).

The agile immigration law practitioner must endeavor to invoke grounds in addition to particular social group when representing an asylum claimant fleeing domestic violence such as race, religion, nationality or political opinion. This is what I refer to as a “social group plus” claim.   Often times, the additional ground can be blended and intertwined with the particular social group ground that would only strengthen this ground, and enable the client’s claim to be readily distinguished from Matter of A-B.

 Religion and Ethnicity

It may be worth exploring whether an applicant can claim asylum on account of race, religion or nationality. Many applicants may belong to ethnic backgrounds or religions whose members may face discrimination in the country. Hence, a victim of domestic violence who belongs to a religion or ethnic group that is disfavored may find it more difficult to seek the help of the authorities when seeking protection from domestic violence perpetrated by a private actor. Establishing this fact, based on the claimant being part of a disfavored group, will enable such a claim from overcoming the elevated concern of “private actor harm” in Matter of A-B. There are several decisions that have acknowledged persecution claims based on religion, ethnicity or both. In one decision, the Board held that the respondent faced anti-Semitic persecution on account of the respondent’s Jewish nationality. Even if ethnicity is not part of the grounds for asylum, an ethnic group may fall under the “nationality” ground.   It can thus be argued that ethnicity or religion can also constitute “nationality”, such as Jewish nationality in the Ukraine, Armenian in Russia or Parsi Zoroastrian in a Muslim majority country. The following decisions support such an argument:

  • Pan v. Holder, 777 F.3d 540 (2d Cir. 2015) (Korean ethnicity and evangelical Christian religion).
  • Shi v. AG, 707 F.3d 1231 (11th 2013)(Christian religion in China).
  • Bracic v. Holder, 603 F.3d 1027 (8th 2010) (Muslim religion and Albanian ethnicity).
  • Matter of O-Z and I-Z-, 22 I&N Dec. 23 (BIA 1998) (Jewish nationality).
  • Ahmed v. Keisler, 504 F.3d 1183 (2007) (Bihari in Bangladesh was a disfavored group and respondent likely to be targeted as a result).

Moreover, as family qualifies as a social group under Matter of  L-E-A, 29 I&N Dec. 40 (BIA 2017), an applicant can also distinguish ethnicity or religion of the family that stands out in the country or because it may be a vulnerable minority group. This can overcome the nexus barrier in L-E-A. Although former Acting Attorney General Whitaker referred L-E-A to himself, L-E-A is still good law at present. There is also a long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

Imputed Political Opinion

Imputed political opinion can also be developed in a domestic violence asylum case when the abusive spouse is politically powerful and uses the state apparatus to persecute defiant or feminist spouse or spouses who defy their husband’s authority under an honor code such as Kanun in Albania.  Long before there was any precedent decision, in 1996,   I successfully represented a respondent claiming asylum who escaped domestic violence abuse perpetrated by her husband who was a powerful police officer in Bangladesh. He did not allow her to work or start her own business, and thus she was persecuted for expressing herself, which went against the mores of her family and society. She was unable to seek protection as her husband was a powerful police officer.   Around the same time, in another case where I had no involvement,  an Immigration Judge granted asylum to Bangladeshi woman who had been beaten by family on account of her role in the Jatiyo Mahila Party and because of her efforts to lead an independent life. Matter of Sonia Sharmin (A73 556 033, IJ New York, NY, Sept 30, 1996). In Fatin v. INS, 12 F.3d 1233 (3d Cir 1993), Judge Alito writing for the majority agreed that gender was an immutable characteristic and thus satisfying the particular social group definition, and in addition, the respondent’s feminism or opposition to male dominance constituted political opinion. In a post Matter of A-B– decision, an Immigration Judge in San Francisco granted asylum to a woman from Mexico who suffered abuse from both her mother and her husband  on account of both particular social group and her feminist political opinion.

There is also a nexus between gangs and the government in the Northern Triangle countries. Gangs may control the government, and in some cases they have become the “de facto government” controlling significant areas of the country. This factor too can give rise to an alternative ground for asylum under political opinion.

Consider the following cases in advancing imputed political opinion in addition to membership in a particular social group for an asylum claimant fleeing domestic violence:

  • Al-Saher v. INS, 268 F.3d 1143 (9th 2001) (political opinion encompassed more than electoral politics or formal political ideology or action).
  • Sangha v. INS, 103 F.3d 1482 (9th 1997) (political opinion can be an actual opinion held by the applicant or an opinion imputed to him/her by persecutor).
  • Ahmed v. Keisler, supra (Bihari in Bangladesh who wants to be sent to Pakistan can show imputed political opinion in addition to membership in particular social group).
  • Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) (membership in union can constitute social group, but if union is also opposed to the government in economic dispute, can impute political opinion to its member).

Matter of A-B was a cowardly decision based on Session’s personal bias. He abused his authority as Attorney General to overturn an established precedent decision that has provided protection to thousands of victims of domestic violence in the United States. Although Sessions is no longer Attorney General, this is his dark legacy that must not be allowed to undermine the rights of mainly women fleeing domestic violence. Immigration practitioners must use every strategy to both overcome and take down Matter of A-B.

 

Cyrus Mehta

Trump Administration Imposes Another Unnecessary Obstacle: USCIS to Issue New Version of Form I-539 and New I-539A on March 8

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U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.

Form I-539 is used for a variety of application types, including:

  • Certain nonimmigrant applications for an extension of stay
  • Certain nonimmigrant applications for a change of status
  • Reinstatement for F-1 and M-1 students

USCIS has expanded the scope of information to be gathered and will change the filing and adjudication requirements. The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 instructions.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

USCIS said it will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

The biometric requirement is bound to slow down the process especially when the dependents are accompanying the principal through a premium processing request. The USCIS has always taken the position that premium processing only applies to the principal filing the Form I-129, and processing the I-539 and I-765 is only a courtesy. The new biometric requirement will most likely deprive the dependent of any premium processing. It also seems odd to subject dependents to biometrics, but not the principal beneficiary. Even dependent infants will be subject to biometrics. Besides being cruel, it also adds another layer of uncertainty in the life of a foreign national worker who may also be subject to a denial of the renewal of his or her Form I-129 request.

The new biometric requirement poses yet another obstacle to foreign nationals who are legally in the US and wish to play by the rules. It is completely unnecessary to subject dependents to biometrics when the principal is not. Not only will it deprive dependents from taking advantage of premium processing, but it will lead to further delays with respect to spouses who are seeking to obtain or renew work authorization as H-4 or L-2 dependents.  The Trump Administration is also on the verge of promulgating a new regulation that will rescind work authorization for H-4 spouses. The biometric requirement will delay the H-4 spouses ability to obtain another renewal before the H-4 regulation takes effect. It only adds insult to injury and rubs salt in the wound of those waiting in the never ending green card backlogs.