United States: USCIS Agrees to Resume Processing H-4 and L-2 Dependent Applications with a Principal’s Form I-129, Per Litigation Settlement
January 23, 2023
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At a glance
- Under a settlement agreement struck in federal court late last week, USCIS will adjudicate H-4 and L-2 applications for extensions or changes of status and work authorization with a principal’s Form I-129 nonimmigrant petition when those forms are concurrently filed.
- Concurrent adjudication could help to reduce the lengthy processing times that have affected H-4 and L-2 dependent applications for several years.
The issue
Effective January 25, 2023, USCIS will resume its practice of adjudicating H-4 and L-2 applications for requests to change or extend status on Form I-539 and employment authorization on Form I-765 at the same time as principals’ nonimmigrant petitions on Form I-129 when those forms are concurrently filed, according to a settlement agreement filed late last week in Edakunni v. Mayorkas, a case pending in federal district court in Washington State. The change will remain in place for two years after the effective date of the settlement.
According to the settlement agreement, USCIS will bundle adjudications of properly, concurrently filed Forms I-129 and corresponding Forms I-539 and I-765, regardless of whether the Form I-129 is filed under standard or premium processing.
During the Trump Administration, USCIS began decoupling the adjudication of H-4 and L-2 I-539s and I-765 from Form I-129 adjudications, resulting in increasingly lengthy processing delays for dependent applications. Edakunni challenged that practice.
The Edakunni settlement follows an agreement in a related litigation under which USCIS changed its policies concerning work authorization for L-2 and E-2 spouses. That litigation resulted in L-2 and E-2 spouses being recognized as work authorized incident to their nonimmigrant status and obviated the need for them to obtain employment authorization documents in most instances.
What this means for employers and foreign nationals
The settlement is hopeful news for H-4 and L-2 dependents who have been subject to increasingly lengthy processing times in recent years, though it may take some time for USCIS to clear the backlog of pending dependent cases. An announcement from USCIS on the settlement agreement is likely to be issued soon.
According to the settlement, the agency will extend premium processing to dependent applications filed with a principal’s premium processed I-129; in the past, USCIS did so as a courtesy. An official expansion of premium processing to I-539s and I-765s is anticipated in phases through 2025, with the first phase (for F-1 change of status and EADs) expected in the coming months.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
