As a result of a settlement reached in the Edakkuni vs. Mayorkas litigation, the United States Citizenship and Immigration Services (USCIS) has agreed to process Form I-539 applications to extend or change status filed by H-4 and L-2 dependents at the same as the corresponding Form I-129 petitions filed on behalf of the H-1B or L-1 principal. Under the terms of the settlement, I-765 applications for Employment Authorization Documents (EADs) filed by H-4 or L-2 spouses will also be processed concurrently when filed together with the Form I-129. This process goes into effect today (i.e., January 25, 2023), and applies to I-539 applications and I-765 filed together with an I-129 petition.
The agreement represents a retreat from the policy—adopted by the Trump administration in March of 2019—to split up or decouple the dependents’ I-539 and I-765 applications that accompanied I-129 petitions and adjudicate these separately. The result of this policy was that, although I-129 petitions filed with Premium Processing continued to be processed within the mandatory 15-day processing time frame, concurrently filed I-539 and I-765 applications filed by dependents of the I-129 beneficiary became subject to much longer processing time frames. This policy was the subject of the Edakkuni vs. Mayorkas litigation.
The new policy will remain in effect for two years from the date of the settlement and is expected to dramatically reduce processing times for certain I-539 and I-765 applications filed by H-4 and L-2 dependents. If such applications are filed concurrently with an I-129 petition that requests Premium Processing, the dependents’ applications should be processed within the requisite 15-day period.
The Edakkuni vs. Mayorkas settlement is a very welcome development and will mitigate significantly the difficulties faced by H-4 and L-2 dependents who are seeking extensions, changes of status or employment authorization. It should be noted that L-2 spouses are considered to have employment authorization incident to their statuses and thus are not required to obtain EADs via I-765 applications.
The USCIS is expected to publish guidance soon on how it plans to implement the settlement requiring joint processing of H-1B/H-4 and L-1/L-2 submissions. We will provide information on how such filings should be prepared to best ensure concurrent processing.
