On January 20, 2023, as part of a settlement agreement with the plaintiffs in Edakunni v. Mayorkas, USCIS agreed to adjudicate Forms I-539 and I-765 for extensions of H-4 and L-2 spouses and employment authorization documents (“EAD”). I-539 forms are filed for H-4 and L-2 extensions of status for spouses and minor children of H-1B and L-1 employees. I-765 forms are filed for initial and extensions of EADs for spouses. These family member extension forms are typically filed concurrently with the petitioning employer’s Form I-129.
Prior to the onset of the COVID-19 pandemic, USCIS would routinely adjudicate and approve these family member applications as a courtesy. This simultaneous adjudication stopped during the pandemic with the employees’ H-1B or L-1 adjudication, first with family members’ H-4, L-2, or EAD adjudication often months later. As a result of these delays in family member adjudications, a class of 101 plaintiffs sued the U.S. Department of Homeland Security (“DHS”) alleging these delays violated the Administrative Procedures Act (“APA”). The APA is a federal law that governs how federal agencies must conduct their work.
To avoid further litigation, the parties reached this settlement agreement whereby USCIS will resume bundled adjudication of H-4, L-2, and EAD extensions for affected family members with the principal employees’ H-1B or L-1 extension. The settlement agreement stipulates that this adjudication bundling only applies when I-539 and I-765 applications are filed concurrently with the I-129 for the employee. This bundling will apply to cases filed under both regular and premium processing. The agreement’s effective date is January 25, 2023, and remains in place for two years. Note that as indicated in our previous alert from February 17, 2022, L-2 spouses are given “L-2S” I-94s upon entry allowing employment authorization without the need for an EAD.
If you have any questions about this new policy, please contact your Mintz immigration attorney.