Adjudication of Forms I-539 & I-765 for H-4 & L-2 Applicants Will Once Again be Bundled with Properly Filed Forms I-129 for H-1B & L-1 Petitions

January 26, 2023

This past week, a historic settlement was reached in the Edakunni v. Mayorkas lawsuit against the Department of Homeland Security (“DHS”). This settlement will have far-reaching and long-term impacts on not only the American economy, but just as importantly, on how USCIS adjudicates H-4 and L-2 applications to extend or change their status and their applications for employment authorization.

H-4 and L-2 nonimmigrant visa holders are the derivative spouses and children of H-1B or L-1 nonimmigrant visa holders. When an H-1B or L-1 visa holder submits their Form I-129, Petition for a Nonimmigrant Worker, their respective H-4 or L-2 derivatives may concurrently file Form I-539, Application To Extend/Change Nonimmigrant Status and, in certain instances, Form I-765, Application for Employment Authorization. In the not-so-distant past, USCIS would adjudicate these H-1B and H-4 or L-1 and L-2 cases at the same time, so long as they were properly filed together. This meant that, depending on whether premium processing was used, USCIS would make a decision on these jointly filed cases within approximately 15 days to four months. However, in March 2019 USCIS made a drastic policy change that resulted in the separate adjudication of I-539 and I-765 applications from the underlying I-129 petitions. As a direct consequence of this policy decision, the processing times for H-4 and L-2 I-539 and I-765 applications ballooned to up to two years in some cases. These massive processing delays meant that H-4 and L-2 spouses were in immigration limbo and unable to work in the United States.

In response to these unprecedented processing delays, the Edakunni lawsuit was filed against the DHS in the Spring of 2021. The Plaintiffs’ primary goal was to have USCIS return to joint adjudication by reversing the policy that de-coupled H-4 or L-2 applications from concurrently filed H-1B or L-1 petitions. After almost two years of litigation, the Plaintiffs achieved their goal and signed a settlement agreement with the government in which USCIS agreed to return to bundling its adjudication of Forms I-539 and I-765 for H-4 and L-2 derivatives if submitted at the same time as a properly filed I-129. It is important to stress that this bundled adjudication will only occur if the I-539 and I-765 are filed concurrently with the underlying I-129. In effect, this return to bundled adjudication means that regardless of whether an H-1B or L-1 petition is filed under premium processing (adjudication within 15 calendar days) or regular processing, starting on January 25, 2023, H and L families should start receiving a decision on their cases from USCIS at the same time.

---