USCIS Settlement Requires Adjudication of H-4, EAD, and L-2 Applications With Principal’s H-1B or L-1 Petition

On January 19, 2023, the U.S. Department of Homeland Security (DHS) reached a settlement in Edakunni v. Mayorkas, which restructures U.S. Citizenship and Immigration Services’ (USCIS) adjudication policies for H-4 and L-2 dependents, including applicable employment authorization documents (EADs). The settlement confirms that USCIS will adjudicate applications for H-4 and L-2 dependent status and EADs at the same time as the principal’s H-1B or L-1 petition when concurrently and properly filed.

Prior to March 2019, USCIS adjudicated Form I-539, Application to Extend/Change Nonimmigrant Status, for H-4 and L-2 dependents and Form I-765, Application for Employment Authorization, at the same time as the principal’s petition when concurrently filed. Based on a series of policy changes since that time, USCIS unbundled adjudication and required additional biometrics to be taken from the dependents, causing processing delays to compound for spouses and children of foreign nationals employed in the United States. Returning to previous policies by way of the settlement, processing times for H-4, L-2, and EAD applications will be reduced to as little as fifteen days, with premium processing.

What Does the Settlement Mean?

According to the settlement:

• Effective January 25, 2023, H-4, and L-2 dependents who properly file Form I-539 and Form I-765, as applicable, with the principal’s Form I-129 will be adjudicated together.
• Bundled adjudication applies to concurrently and properly filed petitions made in premium or regular processing.
• Bundled adjudication does not apply if the filings are not “properly filed” based on USCIS instructions.

The terms of the settlement agreement are valid for two years.

At the time of the settlement agreement and the publication of this article, USCIS’s policy manual had not been updated to implement the terms related to bundled adjudication. The settlement is silent on the coverage of a “premium upgrade” where the related applications were properly and concurrently filed with regular processing before January 25, 2023.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to these and other policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.