By: Steven Brouillard and Jake Campbell
Seyfarth Synopsis: Starting January 25, 2023, USCIS will adjudicate I-539 and I-765 applications for H-4 and L-2 dependents when those applications are filed concurrently with the I-129 petition. The bundling of those applications applies to both regular and premium processed H-1B or L-1 petitions.
USCIS will return to its historical process of adjudicating applications for H-4 and L-2 dependents when the Forms I-539 (application to change or extend status) and I-765 (employment authorization application) are filed concurrently with the H-1B or L-1 petition. In addition to L-2 or H-4 extensions, dependents seeking to change to H-4 or L-2 status using Form I-539 will also benefit from the bundled adjudication, provided that the Form I-129 is filed concurrently. The practice of bundled adjudications will be in effect for two years, effective January 25, 2023.
This shift in practice is the result of a settlement agreement in Edakunni v. Mayorkas, which challenged the lengthy adjudications for H-4 and L-2 dependents. Under the Trump administration, USCIS implemented several changes – requiring biometrics appointments and de-coupling the adjudication of I-539 applications filed together with Form I-129 – that led to extensive processing times for H-4 and L-2 dependents. USCIS, under the Biden administration, has taken several steps to improve the processing time for dependent applications. On May 17, 2021, USCIS suspended the biometrics appointment requirement for those filing an I-539 requesting H-4, L-2, or E dependent nonimmigrant status. On November 10, 2021, USCIS reached a settlement agreement in Shergill v. Mayorkas that permits L and E spouses to work incident to status, and provides automatic extensions of employment authorization for certain I-765 renewal applications.
We expect USCIS to make an announcement regarding the Edakunni settlement agreement shortly. It remains unclear how USCIS will adjudicate pending I-539 or I-765 applications that were filed concurrently with Form I-129, prior to January 25, 2023.
Seyfarth will continue to monitor any further developments from the Edakunni settlement agreement. Should you have any questions, please e-mail the authors directly or alert your Seyfarth Shaw contact.