Settlement Requiring Near-Contemporaneous Adjudication of Properly Bundled Forms I-539 and I-765 to Sunset in January 2025

Quick Hits

• A group of H-4 and L-2 visa holders filed a lawsuit against the secretary of homeland security in April 2021, alleging that USCIS unlawfully delayed adjudicating their I-539 and I-765 applications, resulting in loss of employment.
• A settlement was reached in January 2023 in which USCIS agreed to return to its pre-March 2019 practice of simultaneously adjudicating bundled I-539 and I-765 applications after approving the principal’s I-129 petition, providing relief for dependent spouses who require work authorization from USCIS.

The obligations set forth in the landmark Edakunni v. Mayorkas settlement agreement reached with the U.S. Department of Homeland Security (DHS) on January 19, 2023, are set to expire on January 18, 2025. Under the terms of the settlement, USCIS, a component of DHS, is required to simultaneously adjudicate a properly bundled derivative H-4 or L-2 applicant’s Form I-539 and Form I-765 after adjudicating the principal’s Form I-129 petition.

Historically, USCIS extended premium processing of concurrently filed Forms I-539 and I-765 as a courtesy when properly bundled with the principal’s Form I-129 petition. However, a March 2019 policy change adding a biometrics requirement to all Form I-539 applications made simultaneous adjudications logistically impossible. The ensuing processing delays created unduly lengthy wait times for H-4 and L-2 derivative spouses and resulted in a loss of employment by preventing many from starting or continuing their employment without a valid work permit.

While the Edakunni settlement was a welcome return to the practice of simultaneous adjudication for H-4 and L-2 derivative applicants, USCIS has not provided any insight as to how the agency will handle properly bundled applications after January 18, 2025. Other I-539 categories that are not covered by the Edakunni settlement, such as the TD and O-3 classifications, can take anywhere between five and seven months to adjudicate based on currently posted processing times.

Should USCIS revert to prior processing practices where dependent applications were handled separately, stakeholders may expect lengthy processing delays once USCIS is no longer bound by the terms of the Edakunni settlement. If this happens, H-4 and L-2 dependents could face extended processing delays, which previously led to significant employment disruptions for many spouses and their employers. It is worth noting that the settlement does not limit USCIS’s authority to implement new regulations, policies, or practices concerning status extensions or EADs for qualifying noncitizens with valid H-4 or L-2 status.

As noted above, USCIS has not yet provided any updates or guidance on bundled adjudications once Edakunni sunsets in January 2025. USCIS has nonetheless taken other recent steps to provide relief to derivative dependents, as detailed below:

• USCIS updated guidance in its Policy Manual in March 2022 to clarify E and L spouses are considered work authorized incident to their valid nonimmigrant status, meaning they derive work authorization through an unexpired Form I-94 indicating their derivative status and need not apply for an EAD work permit.
• USCIS announced an expansion of premium processing service to certain Form I-539 and I-765 applications in January 2023, but premium processing is not currently available to H-4 or L-2 derivative applicants; USCIS reserves the right to implement another phase of premium processing expansion to these categories in the future.
• USCIS announced in April 2024 that it was increasing the automatic extension of certain EAD categories from up to 180 days to up to 540 days to help prevent lapses in work authorization for applicants waiting for USCIS to adjudicate pending EAD renewal applications and ensure continuity of operations for U.S. employers.

Key Takeaways

Those most likely to be impacted by the end of Edakunni are those reapplying for EADs after their prior EADs expired and those seeking a change of status to H-4 who also submit EAD applications, since these individuals require approval from USCIS for work authorization and cannot benefit from USCIS’s automatic extension policy.

This, in turn, may affect U.S. employers seeking to employ H-4 EAD applicants, potentially disrupting business operations and placing financial strains on families who rely on dual sources of income. Likewise, those seeking in-country changes of status or extensions of stay may face other administrative obstacles, such as applying for a driver’s license, since most states’ divisions of motor vehicles require that noncitizens present a valid Form I-94.

Generally, an I-129 petition and any accompanying I-539 and I-765 applications may not be filed more than six months prior to the date employment is scheduled to begin or six months prior to the expiration of an approved I-129 petition. Since January 18, 2025, falls on a Saturday, stakeholders seeking to benefit from the Edakunni settlement must have their applications received by USCIS by Friday, January 17, 2025.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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