The Department of Homeland Security (DHS) reached a settlement agreement in Edakunni v. Mayorkas that delivers welcomed news to H-4 and L-2 dependent spouses. Effective January 25, 2023, USCIS will return to a pre-Trump administration policy of adjudicating Form I-539, Applications to Extend/Change Nonimmigrant Status and Form I-765, Applications for Employment Authorization for H-4 and L-2 derivatives along with the underlying Form I-129, Petition for Nonimmigrant Worker when these forms are filed concurrently. This applies in cases filed using standard processing or premium processing. If these forms are filed separately, USCIS will not bundle the adjudication of the forms.
Many derivative spouses faced a loss of employment for extended periods once their work authorization expired due to USCIS processing delays. This settlement agreement is expected to reduce some of these delays and concerns regarding employment authorization for both employers and foreign nationals. Since H-1B petitions are eligible for premium processing, where USCIS takes action on the case within 15 calendar days (including weekends and holidays) for a fee of $2,500, H-4 dependent spouses may now also receive the advantage of even swifter adjudications by utilizing this process.
Prior to this settlement agreement, DHS reached a settlement agreement in Shergill, et al. v. Mayorkas in 2021 recognizing that L-2 and E-2 dependent spouses are employment authorized incident to status, meaning that an application for employment authorization is not required to commence employment in the United States.
As of now, USCIS has not issued guidance on how the agency will adjudicate bundled applications filed before January 25, 2023. Moreover, the settlement agreement also indicates an expiration of two years from the effective date, indicating an end date of January 25, 2025.
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The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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