USCIS Agrees to Adjudicate Applications for H-4 and L-2 Dependents at the Same Time as the Principal H-1B or L-1 Spouse when Those Applications are Concurrently Filed

January 30, 2023
Amanda Rizzo

Prior to 2019, when the spouse and children of H-1B and L-1 workers filed an extension of their status (I-539) along with the principal H-1B or L-1 extension (I-129), USCIS would adjudicate the extensions for the whole family at the same time, including any Employment Authorization Documents (I-765) for the spouse (if applicable). Even though these extensions cannot be filed more than 6 months in advance, this system worked well enough and most H-4 and L-2 EAD extensions were approved prior to the expiration of the previous card.

Then in 2019, the Trump administration began separating the extension requests for H-1B and L-1 workers from the extension applications of their families, causing significant delays. Since then, H-4 and L-2 extension applications, along with associated EAD extensions, have been taking 1-2 years to adjudicate. The plaintiffs in Edakunni v. Mayorkas filed a class action lawsuit against USCIS, stating that the agency was guaranteeing job loss for dependent H-4 and L-2 spouses “because they prohibit extension applications earlier than six months prior to expiry and then take over a year to adjudicate.”

On January 19, 2023, USCIS entered into a settlement agreement with the Edakunni plaintiffs. Beginning on January 25, 2023, USCIS has returned to “bundling” the adjudication of H-4 and L-2 extension applications and EAD applications with principal H-1B or L-1 extension petitions when these applications are filed concurrently. The terms of this agreement will be in effect for a two-year period.

What does this mean for the family members of H-1B and L-1 workers?

  • Form I-539 extension applications for H-4’s and L-2’s may be filed with the underlying L-1 or H-1B Form I-129 extension petition. Form I-765 employment authorization application may also be filed with the family member’s extension application, where applicable.
  • As long as the Forms I-129 and I-539 (and Form I-765, where applicable) are “properly filed” together, USCIS will adjudicate them together.
  • The term “properly filed together” means packaged together and filed at the same time and in the same location, consistent with USCIS form instructions.
  • H-1B and L-1 family bundles may be filed with premium processing or standard processing. Families will remain bundled with either form of processing, as long as they are properly filed together.
  • The settlement agreement does not require USCIS to adjudicate the H-1B or L-2 family bundles within any specific period of time, unless they are filed with premium processing, which requires a decision in 15 days.
  • The settlement agreement does not change the processing of H-4 or L-2 extension applications or associated employment authorization applications which were filed prior to or on January 24, 2023.

Hopefully, the return to bundled processing for H-1B and L-1 visa extensions with their family members’ H-4 and L-2 extension applications will mean a return to consistent work authorization for spouses and a smoother experience for all.

If you have questions about how the Edakunni settlement may affect the processing of your family members’ H-4 or L-2 extension applications or associated employment authorization applications, do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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