The Department of Homeland Security settlement in Edakunni v. Mayorkas has “returned to bundling the adjudication of I-539s (application to extend/change nonimmigrant status) and I-765s (application for employment authorization) for H-4 and L-2 derivatives along with the underlying I-129 when these forms are filed together.” The processing change goes into effect as of January 25, 2023.
Background on the Issue
Before March 2019 the United States Citizenship and Immigration Services would adjudicate an H4 petition and the EAD application simultaneously as the H1B petition from the spouse. Premium processing was also available and cut processing time down to 15 days. When the policies changed under the Trump administration in 2019 to require H4 spouses to get biometrics, and to not process I-539s and I-765s concurrently with I-129s, the H4 EAD wait times became lengthy. The California Service Center for example, was processing H4 visa extensions (through Form I-539) for up to two years versus 4 months for other service centers. The plaintiffs in the case argued that the new biometric requirement was designed to cause H1B visa holders to lose their work authorization and did not serve a legitimate purpose.
“Each of the H-4 plaintiffs have previously given biometrics in conjunction with an application for immigration benefits either at a consulate or in the United States,” said the plaintiffs.
The overall takeaway is that concurrent processing for these forms was more efficient for the USCIS officials and beneficial to the recipients since dependent spouses would be less likely to face job losses due to the backlogs.
The case affecting L2 spouses in November 2021, Shergill v. Mayorkas, came out of the pending Edakunni lawsuit. In the Shergill case L-2 and H-4 plaintiffs wanted reauthorization or extensions of employment.
The final settlement is such that USCIS will return to adjudicating I-539s and I-765s concurrently for H-4 and L-2 derivations with the accompanying I-129 (when filed together). This is not the case if the forms are filed separately.
How We Can Help
If you are unsure how this new settlement affects your current or prospective immigration decision, it’s best to schedule a consultation with a VisaNation Law Group attorney.