USCIS to Adjudicate Forms I-129, I-539 and I-765 Together for H-4 and L-2 Applicants

On January 19, 2023, the United States Department of Homeland Security (DHS) reached a settlement with plaintiffs in Edakunni v. Mayorkas, a class action lawsuit which sought to challenge USCIS’s unreasonable delays in adjudicating H-4 and L-2 applications and associated employment authorization documents (EADs). Per the settlement, beginning January 25, 2023 and for a period of up to two years, DHS will adjudicate applications to change or extend status (Form I-539) and applications for employment authorization (Form I-765) for H-4 and L-2 applicants at the same time as the principal H-1B or L-1 petition as long as all applications are concurrently and properly filed.

What this Means:

This settlement preliminarily restores USCIS’s adjudication policies for H-4 and L-2 dependent applications to the status quo prior to March 2019 and follows USCIS’s May 17, 2021 two-year suspension of biometric requirements for H-4 and L-2 applicants. The suspension of biometrics is due to expire on May 17, 2023 unless extended. Both the resumption of Form I-129, I-539 and I-765 bundling and suspension of biometric requirements are substantial steps by USCIS toward reducing processing times for dependents and increasing employment security for those H-4 and L-2 dependents who depend on the timely issuance of EADs to avoid employment gaps. As a side note, H-4 and L-2 EAD applicants should be aware that it could take a few weeks to receive the EAD card after the Form I-765 is approved.

Importantly, bundled adjudication of H-1B and L-1 petitions applies under both Premium and regular processing. Therefore, if the H-4 and L-2 Forms I-539 and I-765 are filed properly and concurrently with the principal Form I-129 under Premium processing, an H-4 or L-2 applicant could receive an I-765 approval in as little as 15 days, to be followed shortly thereafter with the EAD card. However, USCIS has not clarified whether a properly and concurrently filed H-4 and L-2 application under regular processing would still be adjudicated together with the principal petition if the principal petition were upgraded to Premium processing.

Goeschl Law will be closely monitoring the implementation of this latest update and will issue further client alerts as necessary.